Page 44 - Silver Lakes August Issue 2024

PROPERTY NEWS

THE IMPORTANCE OF APPROVED

BUILDING PLANS

By Donald Mokgehle

hen dealing with the sale of Should the purchaser notice the A layer of protection
property transactions, focus is existence of patent defects after entering Until recently, it was not a legal requirement
Woften placed on the essential into a contract of sale, the seller can rely for the seller to disclose knowledge of the
terms of the contract of sale, namely: on the voetstoots clause to avoid liability absence of approved building plans in a
the capacity of the parties, the property for the non-disclosure of the patent contract of sale. The seller would have been
description, and the purchase price. defects. liable if the purchaser could prove that the
However, there is another crucial aspect seller had knowledge of the absence of
that is often not addressed in the contract Latent defects are those defects on the approved building plans and deliberately
of sale: the production of approved building property which are hidden and should be concealed this with the intention to
plans prior to the transfer of ownership of disclosed by the seller to the purchaser. defraud the purchaser.
the property. The seller cannot raise the voetstoots
clause to escape from the liability The Property Practitioners Act, No. 22 of
The law regulating the requirement of for non-disclosure of latent defects, 2019 offers a layer of protection to the
approved building plans provided that certain conditions are met, purchaser by imposing an obligation on
The National Building Regulations and as highlighted below. property practitioners to obtain and attach
Building Standards Act, No. 103 of 1977 a mandatory disclosure form completed by
(“the Act”) prohibits the erection of any The lack of approved building plans the seller to a contract of sale for signature
building without prior written approval has been considered by our courts to by the parties.
from the municipality. This requirement constitute a latent defect, and the seller
is so severe that any person who erects a will not be able to raise the presence of The mandatory disclosure form contains
building in contravention of the Act is guilty the voetstoots clause in the contract of a declaration by the seller confirming
of an offence and is liable on conviction to sale in an attempt to escape liability. whether the seller is aware that “any
a fine. additions or improvements made to, or any
It must be noted that the mere fact erections made on the property, have been
However, the absence of approved building that a property was sold and registered done or were made, only after the required
plans will not prohibit the transfer of without approved building plans will not consents, permissions and permits to do so
ownership of a property. If the purchase necessarily result in liability for the seller. were properly obtained”. This wording is
price for a property is secured by the This was the crux in the case of Haviside broad enough to cover the requirement for
registration of a mortgage bond, the banks vs Heydricks and Another 2014(1) SA 235 approved building plans.
may impose a condition that the purchaser (KZP).
must produce approved building plans Unfortunately, this layer of protection is
before the mortgage bond can be registered. In this case, the seller unknowingly sold only available when the property is being
a property without approved building sold through a property practitioner and
The voetstoots clause and lack of plans. The purchasers discovered not when the property is sold privately by
approved building plans that there were no approved building the seller.
In its simplest form, a voetstoots clause is plans for a garage and a carport on the
a clause in a contract which stipulates that property; consequently, the structures In closing, sellers are encouraged to
the property is sold in its current form and were illegal. The court confirmed that disclose the status of approved building
subject to all existing defects. These defects the absence of a statutory approval of plans to the purchasers when selling their
can be classified into two categories: patent such building plans is a latent defect. properties so as to avoid potential lawsuits
defects and latent defects. for failing to disclose this important aspect
However, in this instance, the seller of a transaction.
Patent defects are those defects which was not aware of the latent defect and
are visible on the property without the successfully relied on the voetstoots This post and content is sponsored, written
need for further inspection. Failure by the clause. This decision emphasises the and produced by Adams & Adams.
seller to disclose patent defects to the fact that the purchaser must prove
purchaser does not warrant a claim by the that the seller knew about the defect
purchaser against the seller for material and deliberately concealed it with the
non-disclosure. intention to defraud the purchaser.

42 | INTRAMUROS AUGUST 2024