Con­sumer Pro­tec­tion Act is un­likely to in­val­i­date voetstoots clause

Weekend Argus (Saturday Edition) - - PROPERTY -

WILL the new Con­sumer Pro­tec­tion Act, for which the fi­nal re s ol ut i ons wil l be pro­mul­gated in March, make the voetstoots clause ob­so­lete?

Some prop­erty law com­men­ta­tors have ar­gued that the seller and his agent will no longer be pro­tected by the fact that a de­fect was not ap­par­ent to them at the time of trans­fer, as the new law stip­u­lates that ev­ery mem­ber of the “sup­ply chain” can be held re­spon­si­ble for any se­ri­ous de­fect in the “prod­uct” for a pe­riod of six months af­ter pur­chase.

Other com­men­ta­tors have said that the rules ap­ply­ing to a build­ing can­not fea­si­bly be the same as those for ser­vices or man­u­fac­tured goods – if only be­cause the sums in­volved can be so much higher and re­place­ments are not pos­si­ble in the prop­erty world.

Lan­ice Stew­ard, MD of Anne Por t e r Knight Frank, says she and her col­leagues would be track­ing le­gal opin­ion on this mat­ter up to and af­ter the time the new rul­ings are pub­lished.

It does seem likely, she says,

‘Buy­ers are al­ready be­gin­ning to as­sert rights’

that buy­ers will be more con­tentious in 2011 and in fact are al­ready be­gin­ning to as­sert “rights” that they did not ex­er­cise be­fore.

“On a re­cent sale a swim­ming pool crack was dis­cov- ered some time af­ter the home w a s h a n d e d ove r a n d w a s blamed for wa­ter ap­par­ently leak­ing from the pool.

“The owner, how­ever, tes­ti­fied that he had re­paired the crack and that the pool had not leaked af­ter the re­pair had been car­ried out.

“It then tran­spired that the new owner was over­fill­ing the pool, caus­ing it to leak be­tween a paving slab and the fi­bre­glass rim.”

Stew­ard be­lieves the voets t o e t s c l a u s e w i l l h av e t o re­main on the statute books if prop­erty trans­ac­tions are to con­tinue.

“At a cer­tain stage in a prop­erty trans­ac­tion the owner is en­ti­tled to walk away from the project and to ab­solve him­self of all fur­ther re­spon­si­bil­ity pro­vided he has not de­lib­er­ately hid­den any se­ri­ous de­fect in the prop­erty.”

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