THE VOETSTOOTS CLAUSE AND SELLING A PROPERTY WITHOUT APPROVED BUILDING PLANS

THE VOETSTOOTS CLAUSE AND SELLING A PROPERTY WITHOUT APPROVED BUILDING PLANS

Do you need building plans when selling a property?

Any building on your property requires approved building plans, unless the building is defined as minor building work.  Authorization for your building works is given in terms of the guidelines, regulations and by-laws of the local municipality or legal authority where your property is situated.

If the owner builds a new house or if you are considering home renovations which will have an impact on the structure of your home, you will need your building plans to be approved before any construction may begin. This is to ensure that all the construction plans comply with the guidelines and related regulations.

What happens if the seller does not have approved plans for building works?

Believe it or not but it is perfectly legal to sell an erf with a house on it, and for which there are no building plans. In the case of Haviside v Heydricks and Another (AR27/13”) [2013] ZAKPPHC 53 (17 October 2017) the court found that that the seller may rely on the voetstoots clause in the absence of unauthorized building plans based on the facts of the situation. You buy the land that the house is built upon, not the house itself and therefore the improvements on the land is merely an issue between you and the local authority. The Deeds Office has nothing to do with this at all. All that the law requires is that if you as the Seller are aware that your improvements are not entirely on plan and that you then disclose this in your property condition report.

In general, the voetstoots clause will protect the seller against defects in the property, including all latent defects which are unknown to the seller.  However, the voetstoots clause will not protect the seller if it can be shown (by the purchaser) that the seller knew about the latent defect in the property and the seller fraudulently concealed the defect from the purchaser.

In the Haviside case the court determined that an illegal structure that was erected without building plans is considered a latent defect.  The court further, based on the facts of the case, determined that the seller did not know about the defect and did not conceal the unauthorized building structure and could therefore rely on the voetstoots clause.

If a Purchaser therefore offers to buy a property voetstoots and the Seller is not aware of any defective, or non-existent building plans, he is fully protected by voetstoots. The only time when a Seller will be compelled to provide approved building plans is when the sale agreement makes this a condition of sale, or, if you are selling property in Mpumalanga or Limpopo. In those two provinces, legislation exists which compels a Seller to first obtain a certificate (known as SPLUMA certificates), which confirms that all improvements are on approved building plans. What does SPLUMA mean? The Spatial Planning and Land Use Management Act, Act 16 of 2013.

Conclusion:

Prevention is surely better than cure and as people will probably always keep altering their property without the required statutory approvals the offer to purchase could be drafted more clearly to get rid of the problems discussed above.