There has been a lot of speculation as to whether unapproved building plans for a carport or outbuilding would constitute a latent building defect.
Additionally, there have been questions raised regarding whether or not the voetstoots clause protects the seller against physical defects only.
An example given is where a buyer appealed to the court to decide this issue. In brief, the property purchaser’s investment failed to include approved building plans for the existing car port and outbuilding.
This is, in essence, a failure to comply with section 4 of the National Building Regulations and Building Standards Act (Act 103 of 1977).
Consequently, the buyer cancelled the transfer and bond registration with the purchaser and instructed his bank not to proceed with the transactions. The buyer knew that the seller’s failure to disclose latent defects which included the unapproved, illegal carport and outbuilding was a breach of contract.
The seller believed that the voetstoots clause in the sales agreement protected her against the claim by the purchaser and instituted eviction proceedings against the purchaser who had already taken occupation of the property.
The purchaser resisted the eviction proceedings on the ground that the property was latently defective and as a result he was not in breach of contract. The seller's response was that the voetstoots clause in the sale agreement protected her against the claim by the purchaser.
In this case, the court held that, although the sales agreement included a voetstoots clause, the seller had failed to obtain approved building plans for the outbuildings on the property, hampering the proper use of the property he had sold to the buyer and did so without informing the buyer of this fact at any time during the transactional process.
In this instance, the court cited that failure to do so was a contravention of the Consumer Protection Act and general building regulations.
In 2014 another matter in the Kwazulu-Natal High Court ruled in favour of the buyer, where the seller failed to disclose that the double garage erected on the property lacked approved building plans nor did it meet the required standards in terms of building regulations.
The court confirmed the principle established in the previously discussed case, where the absence of approved building plans constitutes as a latent defect and therefore, by default, the voetstoots clause protects the buyer.
The CPA doesn’t provide protection for a seller who deliberately chooses not to disclose all potential latent defects to the agent during the sales process prior to signing the sales agreement, allowing these defects to be documented.
The responsibility then lies with the buyer to prove that the details of the property have been adequately provided prior to concluding the sale and taking transfer of the property.
To argue the voetstoots clause, the buyer will need to prove that the seller failed to provide details of latent defects prior to purchase, and that the intention of the seller was to commit fraud.
It’s important to note that within case law, the context of latent defects in a voetstoots sale, the proof of non-disclosure and fraudulent intent on behalf of the seller are particularly difficult hard to argue.
Therefore, in such cases, it’s wise to seek the help of a legal professional, adept at arguing the evidence of such intent on behalf of the buyer to achieve a successful outcome.
For more information about our comprehensive legal services, including dealing with unapproved building plans, please contact us.
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