- Transaction term over term longer that 1 year
- Capital payable in more than 2 instalments
- Property is not agricultural land
The voetstoots clause is included in the sale agreement when the purchaser agrees to buy the property as it stands with a full understanding of its defects. In this case, the seller has a duty to disclose all hidden (latent) defects to the buyer. At the same time, it’s the purchaser’s responsibility to carefully inspect the property before deciding to buy it. He must be satisfied that there are no visible or obvious (patent) defects. In essence, this means the “voetstoots” seller is not responsible for patent or latent defects that have been disclosed.
But what happens if certain defects go undisclosed? If these are discovered by the purchaser after he has bought the house, he can still claim for compensation from the seller. He must, however, be able to prove that the seller knew about the defects and failed to disclose them. This can prove to be quite a challenge.
Attorneys are therefore often reluctant to sue the seller under common law. Instead, they turn to the CPA. This means it could be the estate agent and not the seller who faces legal action!
Under the Consumer Protection Act (CPA) 68 of 2008, consumers have the right to fair value, good quality and safety. So how does this apply to property transactions? In simple terms, the CPA doesn’t have a strong role to play when it comes to the sale and purchase of immovable property, especially residential property. This is because of the limitations imposed by the CPA itself. For example, the Act applies only to transactions where the seller sells property in the course and scope of his ordinary business. In other words, it mostly doesn’t apply to a sale where the seller is an individual owner of the property but does not actually sell houses for a living.
The CPA only applies to the sale of immovable property where the seller is a property developer or investor who buys, renovates and sells houses as a business.
So what happens if there are defects to the property? Common law is applied and it takes two positions regarding the liability of the seller, namely, the inclusion and exclusion of the “voetstoots” clause. Read how “voetstoots” works in the answer to the next question.
Our common law states that the seller gets to choose who the transferring attorney/conveyancer will be. However, the buyer must pay the transfer and attorney costs. This may seem unfair but if you think about it, the seller is more at risk if the deal doesn’t go smoothly because he is the party receiving the money. The seller is therefore entitled to choose an attorney who he feels safe with and can trust to manage the sale/transfer of the property. Ultimately to ensure a smooth and speedy transaction and receipt of money from the buyer.
This doesn’t mean the purchaser cannot suggest a transferring attorney but the seller would have to agree on this, which doesn’t happen very often.
In a nutshell, by law, the seller, as the owner of the property, gets to decide on the conveyancer because he stands to lose much more if things don’t go according to plan.
This all depends on the marital contract you both signed when you got married. Let’s take a look at the various marriage contracts and how it affects the sale of the property.
In Community of Property means that no matter whether the house was bought before marriage or whose name it’s in it, once the house is sold the profits get split down the middle. Something to take note of if you are in a traditional marriage: According to the Recognition of Customary Marriages Act, these couples are automatically regarded as being married in community of property.
Out of Community of Property With Accrual means if the home was bought during the marriage, it may be sold, with the net proceeds split between the couple, or either party can buy the other out. If the couple chooses the latter option, the transfer of the half-share of the property will be exempt from transfer duty. If the property was bought before the marriage by one of the individuals and was not excluded in the antenuptial contract, it will go to the spouse in whose name it is registered.
Out of Community of Property Without Accrual means the spouses’ estates remain entirely separate. In other words, both partners retain the assets they had before the marriage, as well as any assets accrued during the marriage. In this case, if one spouse owns the property, the net proceeds go to this person. If both own the property, the net proceeds are split equally.
A divorce agreement can override the terms of a couple’s marital contract so both spouses can agree on how they want to divide the net proceeds from their property no matter how they married. However, if they cannot reach an amicable agreement, the property will be divided according to the marriage contract.
The court can get involved and use its own discretion on how the property is divided if misconduct can be proved against a spouse. For example, if there has been abuse in one way or another in the marriage.
