In this article, we talk about the relationship between building plans and voetstoots clauses in South Africa.
In 2008, there was a case where a couple purchased property from a seller with the intention of carrying out alterations and improvements on the building.
However, after seeking approval for their building plans, the architect they were working with informed them that the house had been built without ever having the building plans approved by the local municipality.
In effect, they had purchased an illegally built home. Even though the seller is legally obliged to provide drawings to the buyer, this requirement was never met.
Furthermore, neither the seller nor the estate agent involved with the sale had informed the couple that no original building plans had ever been drawn.
The absence of approved building plans is considered a latent defect. Where there is a voetstoots contract in place, it means that the buyer of the property accepts the property as it is at the time of sale. In this case, the couple had chosen to include a voetstoots clause in their purchase agreement.
However, if the couple had chosen to not include a voetstoots clause in their agreement, they would have been legally entitled to claim all costs from the seller related to having plans drawn up and approved.
In addition, any other repairs or improvements required to bring the house to the required standard for approval would have also been for the seller’s expense.
Had the costs been too great, it would have been possible to cancel the transaction and the buyers would have received a full refund of the purchase price.
It’s important to note that the above discussed process has a time limit within which the rights to claim back may be exercised.
Unfortunately, because the couple had included a voetstoots contract in their sale agreement, they would have had to take different measures in order to claim back from the seller.
Firstly, the buyers would need to prove that the seller was in fact aware that there were no approved building plans and that the municipality had rejected the original plans.
Secondly, the buyers would also need to prove that the seller intentionally did not disclose this fact to them before signing the purchase agreement.
If the buyers were able to provide substantial evidence in court to support their case, they would have been eligible for a suitable discount on the purchase price or a full refund.
In a case like this, it would be advised that the buyers do not make alterations to the property as they would not be approved until the original building met requirements and has been approved.
Should the costs related to obtaining approval for the building fall below R20 000, it’s possible that the matter may be settled in small claims court.
However, should the costs exceed this amount, it’s advisable to seek legal assistance from our property attorneys.
We are experts in property law and we provide professional legal advice related to property related matters, including building plans and voetstoots clauses. For more information about our legal services, please feel free to contact us.
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