What if there are no building plans for the building alterations to the property you bought? Do you have any recourse against the Seller or is the absence of the building plans a latent defect that is protected under voetstoots? 

I received a phone call from an infuriated purchaser who just became the owner of a property. She informed me that she obtained building plans from the municipality after registration took place as she wants to do some extensions to the building on the property. She was shocked to find that there are no building plans for the braai room that was an extension to the original building on the property and the extension was done over the municipal building lines for the property. She now has to appoint a draftsman to obtain approved building plans and the municipality will not approve the plans until an application for the relaxation of the building lines are made, which could involve the costs of a town planner. Her building extension will be delayed and it will cost her extra money that she did not budget for.

She is of the opinion that the seller has to apply for relaxation of the building lines and attend to the approval of building plans for the extension which must include an occupation certificate from the municipality.

She stated that she would still have bought the property if she knew of the unapproved plans, but would have insisted that the seller furnish approved plans for the extension or compensate her for it or she would have offered a lower purchase price.

Unfortunately, she did not check the building plans at the municipality before signature of the sale agreement and the sale agreement contains no reference to building plans. When she asked the Seller to come to the party, he refused to compensate her and indicated that he was not aware of the unapproved extension as he bought it from the previous owner with the braai room already built.

The sale agreement does contain a voetstoots clause in favour of the seller. When a sale agreement contains a voetstoots clause the seller is protected against claims for latent defects in the property and will only be liable for latent defects if he knew of it and wilfully concealed it.

In the Supreme Court of Appeal case of Odendaal versus Ferraris the court found that in a sale of property, the seller’s failure to obtain statutory approval for building alterations on the property constitutes a latent defect in the property. Where a seller does not wilfully conceal such a latent defect he is entitled to rely on the provisions of a voetstoots clause against a buyer who seeks compensation from him for the defect, except where the absence of statutory authorisation renders the property unfit for the purpose for which it was bought and sold.

Make sure that your sale agreement contains all the necessary clauses before you sign it. You can contact the writer, Salomé van Wyk or any of the other conveyancer of Millers Attorneys to assist you.