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.