Consumer Protection Act is unlikely to invalidate voetstoots clause
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.”