Do you buy voetstoots?
JOBURG – Property sellers without plans are warned not to rely on voetstoots.
Property sellers are warned not to rely on the ‘blind protection’ of the voetstoots clause if they don’t have approved building plans.
According to Liesel Greyvenstein, one of the directors of Greyvensteins Attorneys, a member of the national Phatshoane Henney Group of Associated Firms, there is a growing legal shift away from the protective blanket of voetstoots for second-hand property sellers with illegal or unapproved structures.
“The courts now place the responsibility of ensuring that there are approved plans for the property directly on the seller,” said Greyvenstein, adding that while the voetstoots clause remained valid within the realms of common law and was a standard provision in sales agreements, it no longer offered blanket ‘as is’ cover, nor the guarantee of a smooth property transaction.
She said that unapproved building plans were the biggest headache in property transactions today, owing to the tightening of legal requirements around approved plans following the promulgation of the updated SANS 10400 building regulations, Greyvenstein warned that there was a strict process to follow in terms of extensions, alterations and the building of all structures on a normal freehold property.
“Buyers and their banks now almost always want plans of the property, without which sellers run some serious risks,” she warned.
“Aside from the legal implications, getting illegal extensions approved could include lengthy delays in the transfer process. Then there is the risk of the banks withdrawing the financing of the property.
“The banks are less and less willing to finance property purchases unless provided with registered plans. If it comes to light prior to registration that there’s an illegal structure on the property, and even if the seller is genuinely unaware that there are no plans for it, the conveyancers cannot willy-nilly retain funds on registration of transfer for remedy since, by law, the full proceeds on registration are trust funds and belong to the seller. Banks are aware of the risk associated therewith, especially, as the property constitutes their security.”
Greyvenstein concluded that the seller could also be forced to relocate or demolish the offending structure, adding that there were potentially high costs associated with all this. “Litigation is expensive and no seller wants to be the test case.”
