Can You Hold The Seller Responsible If Your House Burns Down - Despite The Voetstoots Clause?

A recent high court ruling has confirmed that a property seller cannot rely on an "as is" or voetstoots clause if they were aware of a latent defect and deliberately concealed it.

It all started with a popping sound, leaking flames, and a dream home that went up in smoke. A family thought they were moving into a well-built house—a two-story, freestanding townhouse. They had no idea of the danger buried within the walls above their fireplace.

On a cold and rainy winter night in the Free State, they lit the fireplace as they often did. This time, they were in for a shock. Everything was fine until a few hours later, while watching television, they heard a loud bang like a gunshot. The new homeowner noticed a glow near the stairs. He found the spare room on the top floor was already on fire, as were the curtains and bed. A loud hissing and flames leaking from under the ceiling cornice made him pull back. He called to his wife to gather their pets and call for help, then they fled outside to wait for the fire department.

The family escaped unharmed, but the extensive damage from the fire and the collapse of the roof left the house uninhabitable.

The Hidden Fire Hazard

Unbeknownst to the buyers, a beam that was part of the roof trusses was bricked into the chimney during construction. The building regulations' code of practice strictly forbids this, as any wood near a chimney is a fire waiting to happen. The code states: "Combustible material such as a timber floor beam, partition, or roof truss may not be built within 200 mm of the inside of a chimney; and… No chimney pipe may be designed and installed in such a way that it will pose a fire hazard to any adjacent material."

After the destruction of their home and the significant repair costs, the buyers took legal action against the developers who had built and sold them the house. The case was heard in the high court. A forensic fire expert explained that the fire originated from the roof beam within the structure. Over time and with repeated heat exposure, the wood dried out and carbonized. On that particular night, the timber beam finally ignited. The fire spread to the polystyrene ceiling cornices, which melted and dropped flaming debris onto the bedding in the room directly above the fireplace.

The "Voetstoots" Clause Doesn't Apply

The developers argued that they were not liable because the purchase agreement contained a standard voetstoots (as is) clause. Therefore, they couldn't be held responsible for a latent defect like this. The developers' position was: "You bought the house as it stood, with all its defects, whether you could see them or not." They also pointed out that the buyers had signed an acknowledgment that they had inspected the house.

The court was clear: "It is the seller's duty to deliver the sold item to the buyer without any defects." The voetstoots clause does not give a seller free rein to hide behind the contract if there is fraud or dishonesty:

• The defect was "latent," as it was concealed within the chimney and could not be discovered through a normal inspection.
• The developer, as the builder, should have known about the latent defect. "Fraud on the part of the seller will not be lightly inferred. Yet the chimney was not noted on the approved building plans; which makes it reasonable to infer that the developer did indeed fraudulently conceal the defect."

The crux of the matter was that the developers' failure to disclose a dangerous and illegal defect to the buyer crossed a line. This was not just a case of negligent non-disclosure but one of fraudulent concealment.

How to Avoid Disasters and Disputes

• Sellers: Carefully inspect the property for any possible defects and make honest disclosure part of your sales process. There is a prescribed and mandatory disclosure form that must be attached to the sales agreement. Do not rely on a standard indemnity clause—it is no guarantee of protection against a latent defect.
• Buyers: Always ask questions. Scrutinize the approved building plans. Consider getting an independent home inspection. If anything bothers you or doesn't look right, try to get it clarified. If, after buying the house, you suspect that defects were fraudulently concealed, get legal advice quickly.

Latent defects do not stay hidden forever, no matter how well they are concealed. Sooner or later, as Shakespeare put it, time will "unfold what plighted cunning hides."