Hi, I recently bought a house. The house had additions in 1985 and there are no plans available. The owner says the plans were passed, but at council the file for that particular property is empty. My architect says I should ask for an occupancy certificate and plans. The conveyancing attorney says it’s not a condition of sale. The estate agent seems to be avoiding the request saying older homes often don’t have plans. What recourse do I have? – Ezette
Hi Ezette, in the case of Haviside v Heydricks and Another the facts were much the same. The court held that the absence of building plans is a latent defect and as such is covered by the voetstoots clause. Thus, the purchaser will have to prove that the seller knew there were no plans and that the seller fraudulently concealed the fact to induce the sale.
I quote a part of the decision:
“…and insofar as the suggestion has been that there was already an illegal structure on the property when the appellant bought it in good faith from her successor in title 14 years previously, I see no reason why she, herself having bought the property from an employee of the municipality without any problems, should or would have had any cause to contemplate that the original carport may have been an illegal structure.
In the premises there is nothing before me to suggest that the seller was aware that building regulations had not been complied with. Even if she was aware, there is nothing to suggest that she ought to have considered the matter significant enough to mention to the buyer. In any event, the respondents’ case in the trial court failed to establish the test set forth in Van der Merwe v Meades (that the appellant deliberately concealed the fact that building regulations had not been complied with, from the respondents in order to induce the sale of the property at an inflated price).”
A prudent purchaser will include a clause in the agreement of sale that the seller guarantees that the building plans are up to date and cover all structures on the property; and the seller will provide the purchaser with a copy of the plans. The clause should further state that if the plans are not up to date that the seller will provide updated and registered plans before registration.
Got a burning question? Email firstname.lastname@example.org and we’ll be sure to assist you
Who is Sonja du Toit?
Sonja du Toit is a director at MC van der Berg Incorporated