Latent Defects – Building Plans & Your Rights

Written by Schindler attorneys

If you have bought a property only to realize 6 months down the line that it does not have approved building plans, this constitutes a latent defect, and you may be able to claim damages as a result.

Rights related to latent defects

Where a latent defect is discovered after ownership has passed to the purchaser, the seller and/or agent may be found liable for the costs of rectifying the defect if they warranted that the property was fit for the purposes for which it is was sold or if the defect was deliberately concealed.

Legal recourse against latent defects

The law therefore affords you the following rights which can be used to remedy the situation:

  1. Cancel the contract of sale and claim damages/losses (if it is a material or serious defect);
  2. Claim a reduction in the purchase price and damages/losses (if it is a less serious defect);
  3. Claim specific performance (repair) and damages/losses (in either situation).

The latent defect and the voetstoots clause

Most sale agreements contain a voetstoots clause, which usually states that the property is sold ‘as it stands’, with all defects, and that the purchaser has accepted the property in such a condition. But a voetstoots clause has no effect where a defect was knowingly and deliberately concealed; and you would have to have reasonable evidence that whomever sold the property to you, had knowledge of this latent defect. If there was no voetstoots clause in your sale agreement, then you can claim from the seller for the cost of legalising your home (for example, the costs of getting new plans drawn up and approved and any alterations that you might have to make). If the cost of legalising your plans is very high, then you could also cancel the agreement of sale, return the house to the seller, and claim a refund of your purchase price and any other damages suffered.

Time limits and your legal recourse

Since your legal recourse in respect of latent defects is based on Roman Law called the aedilitian remedies, there are time limits as to when you need to claim from the seller. For example, if you want to return the house, you can normally only do so within 6 months of taking ownership. If you want to claim only a refund of part of the purchase price, you must normally have done this within 12 months of taking ownership.

Unapproved building plans and the Municipality

If your plans are not approved, your local Municipality would be entitled to send you notices warning that you are non-compliant with building regulations. You would then have to have new plans drawn up and submitted for approval. If the fact that the plans were not approved was concealed from you, you could claim your costs in doing so from the seller and/or agent who put you in this position.

You may also have to prove to the Municipality that the structure is reasonably fit for dwelling, or else you might be ordered to vacate pending the approval of the newly drafted plans. Should the Municipality disapprove any attempts to bring the property under compliance, liability will fall on the seller and/or agent to restore you to the position you were in before you bought the property. This liability would include, amongst others, a refund of the purchase price, providing you with alternative accommodation and a claim for wasted costs for the transfer of the property and/or any other financial loss you might have suffered as a result.

Taking legal action

If your loss is less than R 12,000.00, you could claim from the seller in the Small Claims Court. If your loss exceeds this amount, you will then need to institute your claim in a Magistrates Court or High Court, in which event it is recommended that you approach an attorney for assistance.

 

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