“The Seller warrants/does not warrant [delete appropriately] that all improvements to the property have been carried out in accordance with approved building plans and to the standards required by the building laws of the Republic of South Africa”

2 Jul 2007

“The Seller warrants/does not warrant [delete appropriately] that all improvements to the property have been carried out in accordance with approved building plans and to the standards required by the building laws of the Republic of South Africa”

Up till now in the light of the voetstoots clause which is contained in virtually all sale agreements, Purchasers haven been limited in their ability to complain about the absence of an approved building plan for all structures on the property purchased or that such structures do not comply with the standards required by building laws. In this regard it has always been the belief that these are issues which a purchaser could determine before deciding to by the property and that the purpose of the voetstoots clause was to protect the seller from any complaints of this nature.

It was only in circumstances where the purchaser could prove 'fraud” on the part of the seller that the purchaser could penetrate the voetstoots clause and legitimately complain. In circumstances where the seller knew full well that the constructions were unlawful the matter of fraud is not impossible to prove and in such circumstances the unhappy purchaser would be compensated.

This is understanding of the law has however now been challenged in the case of Van Nieuwkerk vs McCrae in the judgment handed down on the 19th September 2006 in the Witwatersrand Local Division of our High Court.

The rather startling conclusions of the Judge in this matter were that: When a residential property within the area of the jurisdiction of a local authority is sold with a building on it the purchaser is entitled to assume that the building has been erected in compliance with all statutory requirements and that it can be used to its full extent;

The contract between the parties impliedly or tacitly must be understood to include a promise/warrantee of such a nature from the seller to the purchaser;

The voetstoots clause deals only with latent defects of a physical nature and cannot be understood to exclude the implied promise or warrantee of the seller relating to the quality or characteristics of the building/s.

In the light of this judgment and furthermore in the light of the fact that not all sellers [Especially sellers who acquired the buildings in a complete state when they bought the property initially] will be happy to give such warrantee it is my strong recommendation that all Deeds of Sale should now pertinently address the issue of the lawfulness of all structures and contain an additional clause [probably to be inserted in the same area where voetstoots clause is ordinarily recorded] which reads as follows”

“The Seller warrants/does not warrant [delete appropriately] that all improvements to the property have been carried out in accordance with approved building plans and to the standards required by the building laws of the Republic of South Africa”

The above clause will compel the parties to give consideration to the matter of building plans in the process of negotiating and finalizing the sale. If the seller is happy to give such warrantee then so be it. If he is not happy then the purchaser will at least understand the nature of the risk which is being taken and take other steps to guard against it such as perhaps perusing the plan file at the municipal authority before finally binding himself to the transaction.

Yours sincerely Milton Koumbatis