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Lately we had numerous transfers where we had to resolve issues pertaining to the plans of the buildings on the property.
The legal requirements are as follows:
- All buildings on properties have to be in accordance with plans approved by the local authority. There are virtually no exceptions to this rule.
- No property owner, however, is obliged to be in possession of the plans or to pass them on to a subsequent purchaser unless the sale contract obliges the owner to do so.
- There is an implied warranty, however, in every sale that the buildings on the property comply with those demarcated on the approved plans.
- The voetstoots clause gives the seller no protection against discrepancies between existing buildings and those approved on the plans.
If, however, no mention is made of the plans in a sale contract and the buyer subsequently obtains them and discovers that there are discrepancies his recourse is as follows:
- If discovered prior to registration of transfer the buyer can require the seller to either get the plans corrected or the buildings offending against the plans demolished.
- If the seller refuses to co-operate the buyer can apply to the High Court for an urgent interdict stopping the sale until the seller has adequately resolved the problem.
- If no plans can be traced, the buyer can oblige the seller to get approved plans done.
- Where the situation cannot be adequately corrected, for example if the local authority legally refuses to allow the plans to be amended (e.g. because the offending building is crossing a servitude line), the buyer can cancel the sale on the grounds of the implied misrepresentation. Buying a property ‘as is’ only covers patent and latent defects. A clash between existing buildings and the approved plans that cannot be resolved is different and does not fall under the voetstoots definition of buying ‘as is’. The buyer is not getting what he viewed and was entitled to presume were legal constructions.
- The buyer could even cancel the sale after registration in this event, though he may be restricted to suing for damages if the discrepancies complained of do not strike at the root of the sale. He could also hold the seller liable for whatever it takes to sort the problem out.
The seller and buyer can negotiate any terms between them to resolve the issue.
This article is a general information sheet and should not be used or relied on as legal or other 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)