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Building plans and voetstoots

21 November 2013

Introduction
If you have bought a property only to realize 6 months down the line that it does not have approved building plans, this constitutes a latent defect, and you may be able to claim damages as a result.

Rights related to latent defects
Where a latent defect is discovered after ownership has passed to the purchaser, 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.

Legal recourse against latent defects
The law therefore affords you the following rights which can be used to remedy the situation:

  1. Cancel the contract of sale and claim damages/losses (if it is a material or serious defect);
  2. Claim a reduction in the purchase price and damages/losses (if it is a less serious defect);
  3. Claim specific performance (repair) and damages/losses (in either situation).

The latent defect and the voetstoots clause
Most sale agreements contain a voetstoots clause, which usually states that the property is sold ‘as it stands’, with all defects, and that the purchaser has accepted the property in such a condition. But a voetstoots clause has no effect where a defect was knowingly and deliberately concealed; and you would have to have reasonable evidence that whomever sold the property to you, had knowledge of this latent defect. If there was no voetstoots clause in your sale agreement, then you can claim from the seller for the cost of legalising your home (for example, the costs of getting new plans drawn up and approved and any alterations that you might have to make). If the cost of legalising your plans is very high, then you could also cancel the agreement of sale, return the house to the seller, and claim a refund of your purchase price and any other damages suffered.

Time limits and your legal recourse
Since your legal recourse in respect of latent defects is based on Roman Law called the aedilitian remedies, 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.

Unapproved building plans and the Municipality
If your plans are not approved, your local Municipality would be entitled to send you notices warning that you are non-compliant with building regulations. You would then have to have new plans drawn up and submitted for approval. If the fact that the plans were not approved was concealed from you, you could claim your costs in doing so from the seller and/or agent who put you in this position.

You may also have to prove to the Municipality that the structure is reasonably fit for dwelling, or else you might be ordered to vacate pending the approval of the newly drafted plans. Should the Municipality disapprove any attempts to bring the property under compliance, liability will fall on the seller and/or agent to restore you to the position you were in before you bought the property. This liability would include, amongst others, a refund of the purchase price, providing you with alternative accommodation and a claim for wasted costs for the transfer of the property and/or any other financial loss you might have suffered as a result.

Taking legal action
If your loss is less than R 12,000.00, you could claim from the seller in the Small Claims Court. If your loss exceeds this amount, you will then need to institute your claim in a Magistrates Court or High Court, in which event it is recommended that you approach an attorney for assistance.

Sika Ackotia, Candidate Attorney and Chantelle Gladwin, Partner, at Schindlers Attorneys

Reader Comments: 7
Ken Mustard 21/11/2013:

A purchaser should not consider just doing nothing about the position. In light of the SCA decision of Lester v Ndlambe Municipality (514/12) [2013] ZASCA 95 (22 August 2013) the local authority has the right to apply for a demolition order and the court has no discretion to refuse or delay the order. The municipality will (hopefully) give an opportunity to the owner to get plans passed before taking such a step but if the alterations / buildings are such that plans cannot be approved - or the municipality decide that they have waited long enough - part or the whole of the property purchased could be reduced to rubble. Roll on compulsory surveys!

Petrus Steyn 21/11/2013:

In the same direction perhaps - since I am a town planner - if a person purchases a property, and the estate agent misinformed the purchaser about the land use rights - isn't that then also a latent defect?

Michelle Marais 22/11/2013:

In Haviside v Heydricks and Another (AR27/13) [2013] ZAKZPHC 53 (17 October 2013), the court upheld the seller's reliance on the voetstoots clause when the purchaser claimed damages for his additional expenses to his planned renovation due to the fact that there were no approved plans for the existing garage. This judgment confirms the position in our law that the absence of approved building plans constitutes a latent defect, in respect of which a voetstoots clause protects an innocent seller.

Milton Koumbatis 25/11/2013:

I am most curious to know where the author of the article found precedent for the thought that there are 6 and 12 months time restrictions on the two aedilitian remedies he refers to.

JJ de Kock 29/11/2013:

I would also like to know about these two "prescription periods". According to my knowledge the prescription period is the common law one of 3 years. On lack of approved proper building plans: I also am of opinion that where an agreement of sale provides for a voetstoots clause plus a clause that the seller warrants that there are approved building plans for the property as it is sold, then the latter stipulation reigns supreme over the voetstoots clause. Or,i.e, it overrules the voetstoots clause re the plan.

ABBEY NAIDOO 29/11/2013:

I am not so sure I agree with the contention that the "absence" of building plans constitutes a latent defect for which an "innocent" seller should be protected by the voetstoots clause. The so-called absence is actually non- compliance with the municipal by-laws which deal with the submission of building plans. Unless the proposition that ignorance of the law cannot be pleaded as a defence has changed, then the Seller, by his failure to comply with the law, knowingly withholds such information to the detriment of the Buyer - fraud through non-disclosure - acts unlawfully and should be held liable for damages suffered by the Buyer.

I cannot see how a court can pronounce such a seller as innocent except where the Seller has himself acquired the property from a prior owner who failed to submit building plans. In the latter case the Buyer would probably have recourse against the Municipality concerned. Further, I find it odd that the court should place the onus on the Buyer to establish the Seller's fraud through non-disclosure. I think this is a case for strict liability.

Andrew Murray 05/12/2013:

With respect, the author has omitted the requirement of fraud regarding defects, in the fourth paragraph of the article above: VD Merwe vs Meades, (AD 1991) requires that the seller "maliciously intended to conceal its existence from the purchaser with the purpose of defrauding him".

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