UNAPPROVED BUILDING PLANS AND THE "VOETSTOOTS" CLAUSE

Purchasers should take heed of the potential disastrous consequences of purchasing a property containing illegal building structures.  Where illegal structures exist, the Municipality could apply for a demolition order, which if granted, will result in the illegal structures being reduced to rubble with the attendant reduction in value of the property concerned.  A prospective purchaser can either satisfy himself prior to entering into a sale agreement that the improvements on the property are built in accordance with approved plans and according to municipal regulations (often with the help of a qualified expert eg. an architect), or insert an appropriate warranty by the seller to this effect.  Another option is to delete or omit the voetstoots clause in its entirety.  Where time does not permit a proper investigation before signing the agreement, a suitably worded suspensive condition providing the purchaser with a period of time within which to satisfy himself as to the legality of the improvements and to notify the seller in writing of his approval, could be inserted into the agreement.  Ideally, the seller should be obliged to furnish the purchaser with a copy of the approved plans as soon as possible after signing the sale agreement.  If the purchaser neglects to ascertain the status of the improvements prior to transfer, he will either have to accept the property with the prevailing defect or enter into costly (and often protracted) litigation in an attempt to enforce his rights.

In the recent case of Haviside v Heydricks and Another 2014 (1) SA 235 (KZB) it was, however, held that the "voetstoots" clause covers defects, like unapproved building plans.  This case is not a carte blanche to deliberately conceal latent defects, and one must be fairly cautious in deliberately concealing defects with the intention to defraud the purchaser.