A Property24 reader asks:
A reader says he and his wife recently bought a house and in wanting to make alterations discovered they're sitting on an 'illegal dwelling'.
My wife and I purchased a property in January this year in Lakeside, Cape Town. We are wanting to do a few alterations so my architect went to Council and it has come to light that the previous owners went ahead with building, despite being told by Council that they couldn’t. So we’re sitting on an illegal dwelling. We were never told any of this by the estate agent.
Are we, as the new owners, now completely liable to 're-do' the whole house?
Sika Ackotia of Schindlers Attorneys, Notaries & Conveyancers advises:
The absence of approved building plans for your home, constitute a latent defect in terms of Odendaal v Ferraris (422/2007) [2008] ZASCA 85. However, most sale agreements contain voetstoots clauses, which basically mean that the property is sold in the condition ‘as it stands’, meaning with all defects, and that the purchaser accepts the property in this condition (in your case, without plans).
If there was no voetstoots clause in your agreement, then you can claim from the seller for the cost of legalising your home (in getting plans drawn up and approved, and for any alterations that you might have to make to get the plans approved). If the cost of legalising your plans is very high, then you could also cancel the agreement, return the house to the seller, and claim a refund of your purchase price. However, since this recourse is based on common law remedies called the aedilitian remedies, there is a limit on the time periods within which you need to claim from the seller and we would advise you to consult further with your attorney in this respect.
If there was a voetstoots clause in your purchase agreement, you would need to prove that the seller:
- knew about the fact that there were no approved plans - which from your question above, is quite likely if the municipality rejected the plans; and
- that they intentionally covered up the fact that there were no approved plans. This is important to prove in Court but is difficult to do if the matter never came up during the inspection of the property or during the sale/transfer process.
If you can prove that the seller knew about, and concealed the fact that there were no approved plans, then you can claim a reduction in the purchase price or set the sale aside, as described above.
If you elect to claim from the seller we would recommend that you put your alterations on hold until you have obtained approval from the municipality for the structure as it stands, because you might be required to make alterations just to bring the structure into line with the current regulations. If this occurs, you want to be able to quantify (measure) your loss as a result of the seller’s conduct, and this may be difficult if you have already proceeded with your alterations.
You could claim from the seller in the Small Claims Court if your loss is less than R 12 000, but it would be best to instruct an attorney if your loss exceeds this amount, as you will then need to institute Court action to recover your loss.
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