12/08/2026
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𝗗𝗔𝗠𝗣, 𝗟𝗔𝗧𝗘𝗡𝗧 𝗗𝗘𝗙𝗘𝗖𝗧𝗦 𝗔𝗡𝗗 𝗣𝗨𝗥𝗖𝗛𝗔𝗦𝗜𝗡𝗚 𝗩𝗢𝗘𝗧𝗦𝗧𝗢𝗢𝗧𝗦 – 𝗡𝗢𝗧 𝗔𝗦 𝗦𝗜𝗠𝗣𝗟𝗘 𝗔𝗦 𝗬𝗢𝗨 𝗧𝗛𝗜𝗡𝗞
When purchasing property, it is not uncommon for the offer to purchase to include a voetstoots clause. A voetstoots clause simply means that the property is purchased as is, at the purchaser’s risk. Latent defects are those defects present at a property which are not known to a seller and could not be easily found through a reasonable inspection of the property at the time the offer to purchase is signed. Defects are often a cause of conflict and are especially problematic in the realm of contracts of sale in that they affect the use and value of the property in question. Where the property is not necessarily free of defects, purchasing a property voetstoots may become problematic. Nowhere is this clearer than where damp is concerned.
Damp refers to the presence of moisture in a property which, if left untreated for a prolonged period, may result in rapid and serious structural deterioration which affects the use, enjoyment and value of a property. Damp as a defect usually occurs as a latent defect as it is a structural flaw that is not easy to spot even through a reasonable inspection of the property and often may even require professional assistance to identify. The general rule concerning latent defects in South African law, is that the seller is not liable for defects that were unknown to them, and such defects will fall within the ambit of the voetstoots clause.
When can a seller by held liable for latent defects? - Case law confirms that the liability for latent defects may arise from two sources namely: through contractual terms, and the other source where liability for a latent defect may arise is where the seller deliberately and fraudulently conceals the defect.
Therefore this means that sellers cannot rely on the nature of damp as a latent defect as a means to escape liability especially where a series of paint jobs and remodeling has occurred on the property; in such instances, the seller ought to have reasonably known that the property was afflicted with damp, which should then be declared to the purchaser to avoid any liability for the repairs of such damp. We suggest that any and all damp is always declared to a purchaser.
Click on the link below to read our MCPurchasersGuide:
https://mcvdberg.blob.core.windows.net/guides/PurchasersGuide%20-%20with%20cover%20page.pdf
