It often happens that the structure of an existing dwelling has been changed during the years by alterations or extensions to the property. In the past no cognisance was given to have the existing plans amended at the Building Plan Section of the local municipality’s office, especially with minor improvements.
It is therefore in the interest of the Seller of immovable property to make sure that the building plans of the property in question are approved at the offices of the local Council, prior to entering into a sale agreement. In the event of a Seller passing transfer of a property to a new Purchaser, without approved building plans, the Seller can be held liable for damages at the choice of the Purchaser.
Estate agents should also be aware of the requirement of approved building plans, as even they can be held liable for damages in the event of a property being sold without approved building plans.
A Purchaser must therefore always insist on perusing the approved building plans of the property they are interested in buying. A Purchaser must at all times perform due diligence investigations prior to entering into an agreement of sale, especially with the existence of a ‘voetstoots’-clause.
A ‘voetstoots’-clause has no effect where a defect was knowingly and deliberately concealed. The Purchaser would have to have reasonable evidence that the seller/agent had knowledge of this latent defect. If there was no ‘voetstoots’-clause in the sale agreement, then the Purchaser can claim from the seller for the cost of legalising the property (for example, the costs of getting new plans drawn up and approved and any alterations that might have to take place).
I the case of Haviside v Hendricks and Another (AR27/13) ‹2013›ZAKZPHC 53 (17 October 2013) judgement was delivered to confirm that the absence of approved plans constitutes a latent defect, in respect of which a ‘voetstoots’-clause protects an innocent Seller. The Court upheld the Seller’s reliance on the ‘voetstoots’-clause, in the face of a claim by the Purchaser to make good his additional expenses to his planned renovation necessitated by the absence of approved plans relating to an existing garage. In this case however, there was no proof that the defendant (seller) had any knowledge of contravention of the building regulations, and no fraudulent non-disclosure was proven. The Court rule that the defendant was protected by the ‘voetstoots’-clause and could not be held liable for the defect.
Each case must obviously be weighed on its own merits. Where a latent defect is discovered after the Purchaser has taken ownership, the seller and/or agent may be found liable for the costs of rectifying the defect if they warranted that the property was fit for the purposes for which it is was sold or if the defect was deliberately concealed.
The law affords the Purchaser the following rights which can be used to remedy the situation:
- In the event of a material/serious defect, the Purchaser has the right to CANCEL the sale agreement and claim damages from the Seller/Agent;
- In the event of a less serious defect, the Purchaser can claim a reduction in the purchase price and reasonable damages;
- In either situation, the Purchaser has the right to claim specific performance and damages.
Time limits and legal recourse:
Purchasers need to be aware that the legal recourse in respect of latent defects is based on Roman Law; there are time limits as to when you need to claim from the seller. For example, if you want to return the house, you can normally only do so within 6 months of taking ownership. If you want to claim only a refund of part of the purchase price, you must normally have done this within 12 months of taking ownership.
The conclusion is therefore, in the interest of ALL parties, to ensure that the building plans are approved, or to disclose the fact of non-approved plans in the agreement of sale. Transparency is the best policy!
Wietz Viljoen, WVA INC.
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.