SELLING A PROPERTY WITHOUT 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”.  Authorisation for your building works is given in terms of the guidelines and regulation by-laws of the local 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 plan approved before any construction begins. This is to ensure that all the construction plans comply with guidelines and related regulations.

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

An answer to the above can be found in the case of Haviside v Heydricks and Another (AR27/13”) [2013] ZAKPPHC 53 (17 October 2017) where the court found that that the seller may rely on the voetstoots clause in the absence of unauthorised building plans based on the facts of the situation.

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.

It is important to note that the court will deal with the voetstoots clause on a case-by-case basis and that sellers do not automatically qualify for impunity because their contract includes the voetstoots clause. Should a seller be found to have purposefully concealed the defect, he or she would not be able successful with their reliance on the voetstoots clause.