VOETSTOOTS AND BUILDING PLANS
We have previously shown that the voetstoots clause does protect the ordinary home owner who sells his property with defects, as long as he was unaware of hidden defects and did not deliberately conceal it.
But what about the case where there were no registered building plans? Surely it is an illegal situation? Surely the purchaser may expect that everything about the property is legal?
Yes, but if there is a voetstoots clause and no other warranties about building plans the seller may still avail himself of the usual voetstoots protection. In 2008 the Supreme Court Appeal confirmed this to be our law, with one exception, namely where the lack of statutory authorisation renders the property unfit for the purpose of which it was bought. One such an example is where a property was sold as a going concern for the purpose of conducting a café and restaurant and after the sale the buyers became aware that the restaurant was being conducted without a licence and that it was not possible to obtain one for that property.
Many standard Offers to Purchase used by estate agents now contain specific clauses about the availability of building plans in order to eliminate any uncertainty. Prospective purchasers are advised to either check the building plans or insist that the Seller take steps to obtain them. The risk is that the local authority is empowered to demand that any illegal structure be demolished.
