Voetstoots Clause - ODENDAAL V FERRARIS ( by courtesty C&A FRIEDLANDER ATTORNEYS )
(Odendaal v Ferraris (422/2007) [2008] ZASCA 85 (1 September 2008) - Appeal against the refusal by the Port Elizabeth High Court to grant an application for the respondent’s eviction from a residential property at Sunridge Park, Port Elizabeth.)
The property was advertised for sale early in 2006. On 19 March 2006 the respondent, Mr Ferraris, inspected the property in the presence of the appellant’s estate agent. In addition to its proximity to a school and its spaciousness, the particular feature that appealed to him was the ample parking as a collector of classic motor vehicles. He was unable to gain access to the outbuilding during the inspection because it was locked. However, the estate agent assured him that the buildings were in faultless condition, that the jacuzzi worked and that the pool had been inspected for leaks. On these assurances he decided on the same day to sign an offer, which the appellant accepted.
After he moved in and discovered certain defects, Ferraris refused to finalise the deal and instructed the bank to delay the transfer of the property to enable him to resolve the problems.
These defects included a leaking swimming pool, a faulty jacuzzi and a leak in the roof over one of the bedrooms. The ceiling in the outbuilding had partially collapsed, there was a sewer manhole cover in the middle of the laundry, the staircase railing in the house collapsed without warning on the night he moved in, there was active borer beetle in the wood panelling in the dining room and the carport contravened the Municipality Zoning Scheme Regulations.
Odendaal maintained that a voetstoots clause protected her from liability.
After effectively stopping transfer, Ferraris refused to comply with Odendaal’s demand to vacate the property, saying that he had not decided whether to proceed with the sale at a reduced price or to rescind the sale agreement. He later allegedly elected to abide by the contract.
The case raised the more general question of the nature of the defects that would fall within a voetstoots clause. According to the judgment the absence of statutory approval for the outbuilding constituted a latent defect. It stated that, “barring the supervention of public policy considerations, or of illegalities impacting on constitutional prescripts…a voetstoots clause ordinarily covers the absence of statutory authorisations”.
It is trite that if a purchaser aims to avoid the consequences of a voetstoots clause he must show that not only did the seller know of the latent defect and failed to disclose it, but also that it was deliberately concealed with the intention to defraud. The court held that Ferraris did not establish that Odendaal had deliberately tried to conceal the defects from him, including the lack of statutory authorisation for the outbuilding. The voetstoots clause therefore applied to the defects.
The court confirmed that as a general rule, where a buyer has an opportunity to inspect the property before buying it, and nevertheless buys it with its patent defects, he or she will have no recourse against the seller. Ferraris had not conducted a thorough inspection of the premises, but had relied on the assurances of the estate agent. The water damage in the outbuilding, for instance, would have been discovered had he asked for sufficient access.
In conclusion the court warned that “a litigant who undertakes the burden to establish fraud, especially in motion proceedings, must ensure that both his allegations, and the facts on which he relies to underpin them, are clear and specific”. Ferraris’ allegations were vague, unspecific and devoid of sufficient evidential support. He failed to establish that Odendaal deliberately concealed the rejection of the plans by the municipality. It could furthermore not be inferred that Odendaal had deliberately aimed to conceal the unfastened staircase railing with the animal skins, which were draped over the railing at the time of the inspection. As for the pool leaks, Ferraris did not claim it existed at the time the contract of sale came into existence.
Considering the above, Ferraris could not avoid the consequences of the voetstoots clause and he therefore had no justification for instructing the bank to stop transfer. This constituted a repudiation of the agreement, which entitled Odendaal to cancel the agreement and to evict him from the property.