The CPA (Consumer Protection Act) doesn’t override or negate the “voetstoots” clause that still appears in most property sale agreements. Most agreement of sale of immovable property contain a voetsoots clause, which frees the seller from any liability patent and/or latent defects which the buyer may later find when taking occupation of the property. Don’t make this mistake when buying your next house.
Rawson Property noted that this issue has been extensively discussed by real estate and legal experts as many consumers are still under the impression that the clause is no longer applicable to home sales and may not be included in sales agreements. Consumers seem to think that if they find any latent defects in the house after they have purchased it, the CPA will let them cancel the deal and get their money back or claim damages from the seller or estate agent. This is not the case. It has become clear that the CPA may apply in some cases where the seller is a property developer or a speculator whose “usual business” is to build houses and sell them, but does not apply when an individual homeowner is selling his or her home to another individual. This is because it’s not the “usual business” of that homeowner to sell real estate.
In addition, the buyer can’t look to the agent for damages if he later decides he is not satisfied with his purchase since an agreement of sale is a contract between the seller and the buyer, the estate agent is simply just a facilitator. The buyer is entitled to not accept this clause, but if he doesn’t accept it, he will not be able to cancel the sale agreement if defects are found in the household, unless he can definitively prove that the latent defects were deliberately concealed with the intention to defraud him.