Voetstoots clause can still apply

22 July 2014

As buyers today are far more informed than they were ten or fifteen years ago, and are able to access the information such as the age of the house, how long the current owner has owned it for, what they bought it for and even what the initial bond was that was registered to the property, via the Deeds Office, they tend to do a lot of research on the properties they intend buying beforehand. Buyers realise, too, that all building plans have to be approved.

Situations sometimes arise where a member of a family buys a unit for another and does not monitor what is done to that unit or what changes are made. Complications set in when the improvement is discovered and it has to be demolished, particularly if the property has been sold to another, says Lanice Steward, managing director of Knight Frank Residential SA.

There was recently a case reported (Haviside v Heydricks and Another) where a unit was bought initially for the seller’s mother and unbeknownst to the seller, her mother had enclosed a carport and turned it into what looked like a normal brick and mortar garage.

In many instances, owners do not have a copy of the plans of their property as they never received them when they bought or they could have been damaged or gone missing through some or other incident, and therefore would be completely unaware if there was an illegal structure on the property, said Steward.

This would only be able to be discovered if the plans were available. In the case mentioned above in the Pietermaritzburg High Court, a daughter bought a property for her mother, which she then subsequently sold without the knowledge that (a) the carport on the property they bought was an illegal structure, and (b) that her mother had enclosed that carport into a garage, which was also illegal.

The property was sold and only when the buyer wanted to build upwards on top of the garage, was it found that the whole structure was illegal and would need to be demolished and reconstructed.

The buyers took the sellers to court and judgement was found in the buyers’ favour in that the seller had to pay for the demolition and reconstruction of the garage but the seller took this on appeal and the High Court then said that the voetstoots clause in this case applied. The presiding judge reminded all that voetstoots means “take as is”, where the buyer had agreed to buy the property in its current state and that the seller could not be held liable for latent or patent defects.

If the buyer wanted to escape the provisions of the voetstoots clause, he would have to prove that that seller intentionally withheld the information from them, but this was not the case as the seller was innocent in this particular instance, said Steward.

“Buyers must check carefully whether this clause is in their purchase agreement, as accepting this clause does mean that they are accepting the property in whatever condition it is in,” she said.