Should sellers provide approved building plans when selling property?

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The simple answer is no. However, the National Building Regulations and Building Standards Act mandates that local authorities approve building plans for the construction, alteration, or conversion of a building. Consequently, if approved plans are absent, the property owner would be committing a statutory offence.

Once signed by both parties, an offer to purchase becomes a deed of sale. This often includes a ‘voetstoots’ clause, which means the buyer accepts the property as is with latent or patent defects. However, if the seller knowingly hides a latent defect and the buyer can prove this deception, the seller may be responsible for repair costs, or the sale could be nullified.

In the 2014 Haviside vs. Hendriks case, the Supreme Court of Appeal ruled that lacking statutory approval is considered a latent defect. Here’s a brief overview of the case details:

Mrs. Haviside bought a property for her mother to live in. Being a first-time homeowner, she did not ask for building plans during the purchase. Years later, her mother arranged the property’s sale without Mrs. Haviside’s involvement. When the new purchaser wanted to build on top of the garage, they discovered construction issues with the garage: its foundations were weak, and the roof wasn’t adequately slanted, making it an illegal structure and non-compliant with municipal bylaws. Mrs. Haviside claimed ignorance of the missing building plans and any defects during the sale. She relied on the voetstoots clause in the deed of sale, which protects sellers from liability for undisclosed defects they were unaware of.

The court ruled that the voetstoots clause protected Mrs Haviside since she wasn’t aware of the missing building plans or the garage’s defects when she sold the property.

However, Judge AJ Stretch in the Haviside case concurred with the ruling in Odendaal vs. Ferraris, stating that statutory non-compliance, like lacking approved building plans, is indeed a latent defect since homeowners are legally required to have them.

From the cited cases, one can deduce that if sellers were legally obligated to include approved building plans in the offer to purchase, the judges would have explicitly said so. However, their decisions were based on the specific merits of each case.

In other words, when both the purchaser and seller sign an offer to purchase, it becomes a binding contract. If this contract states that the seller guarantees the possession of approved building plans, they must provide them to the purchaser upon registration. Alternatively, the purchaser can ask for a clause ensuring the delivery of these plans before the contract is fully activated.

The approved building plans can also be included in the property disclosure form, where the seller must indicate whether they have the plans in their possession.

In conclusion, if a seller knows there are no approved building plans, it’s best to disclose this to the purchaser. Failing to do so might nullify any clause that protects the seller from liability.

Reference List:

The National Building Regulations and Building Standards Act  103 of 1977

Haviside vs Hendriks and Another (AR27/13) [2013] ZAKZPHC 53; 2014 (1) SA 235 (KZP)

Odendaal v Ferraris 2009 (4) SA 313 SCA

WRITTEN BY MEERUSHINI GOVENDER

Meerushini Govender is a Director at Miller Bosman Le Roux Attorneys.

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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