Sellers, the ‘voetstoots’ clause won’t protect you anymore

One of South Africa’s largest conveyancing firms has issued a strong warning to property sellers not to rely on the “blind protection” of the ‘voetstoets’ clause if they don’t have approved building plans.

The courts now place the responsibility of ensuring that there are approved plans for the property directly on the seller,” says Greyvenstein.

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,” says Greyvenstein.

“While the voetstoets clause remained valid within the realms of common law and was a standard provision in sales agreements, it is no longer offered as blanket ‘as is’ cover, nor the guarantee of a smooth property transaction.”

Unapproved building plans are 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, and Greyvenstein says there is 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,” says Greyvenstein.

“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.”

She says the banks are less and less willing to finance property purchases unless provided with registered plans.

Unapproved building plans are 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

“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,” she says.

The seller could also be forced to relocate or demolish the offending structure, says Greyvenstein, and there are potentially high costs associated with all this.

“Litigation is expensive, and no seller wants to be the test case,” she says.

Courts finding in favour of purchasers

Considering ‘precedent-setting’ cases such as Banda and Another v Van der Spuy and Another (where the buyers successfully challenged a defective roof), and Naidoo v Moodley (where the purchaser found out that there was no certificate of occupancy, a requirement for the property to be registered), Greyvenstein says sellers’ voetstoots arguments and assertions that they were not aware of the absence of plans or illegal constructions are now regularly being overruled by the courts.

“The trend is for the courts to find in favour of purchasers, with the reasoning that they are entitled to assume that all legal and municipal requirements have been adhered to,” says Greyvenstein.

1. Ignorance no longer an excuse

Greyvenstein says the introduction of a seller’s declaration by the Estate Agency Affairs Board (EAAB) in recent years means that sellers are now routinely questioned about approved plans.

“Right up front, along with the signing of the mandate, sellers have to complete a declaration regarding the existence or lack of approved plans. It’s also something that prudent agents investigate when they take mandates, so there’s no getting away with the excuse that they didn’t know,” she says.

2. Common problems

According to Greyvenstein, the most common problems experienced by conveyancing attorneys and estate agents today include building line transgressions, with particular reference to carports and entertainment areas built on to boundary walls, and building over servitudes.

“People also regularly build over manholes, drains and gulleys, and enclose balconies in apartment blocks without the requisite permissions,” she says.

Greyvenstein says purchasers also needed to watch out for sectional title units that had been extended, since approval was required from the body corporate as well as the municipality, and plans had to be registered with the surveyor general and the Deeds Office.

In circumstances where plans were not available, Greyvenstein says, the parties would have to come to an agreement to have “as built” plans drafted and submitted in order for the transaction to proceed. However, the seller runs the risk of the purchaser wanting to pull out of the sale.

“It will then be at the bank’s discretion as to whether to go ahead with financing or not, but it’s very likely that the bank will withdraw the financing,” she says.

If the municipality was unable to approve “as built” plans, Greyvenstein says remedial action would be required, and the purchaser would have to be compensated with regard to the costs of relocating or replacing the offending structure.

Greyvenstein says homeowners are responsible for the safekeeping of their own plans.

“It’s therefore in all property owners’ best interests to have municipal-approved plans, which will save time and pre-empt problems down the line when the time comes to sell,” she says.

As a rough guide, Greyvenstein says the cost of approved plans for a basic three bedroom, two bathroom house is about R10 000, provided there were no restrictive title deed conditions.

“Compare this cost with that of a failed transaction, and that once a sale falls through, a property quickly gets a stigma attached to it, so the chances are it will sit on the shelf,” says Greyvenstein.

“No matter which way you look at it, it makes sense to get approved plans now.”

Our Story :

Born on 18 June 1964 , London England , Andrew’s grand father and father were both Architects , specializing in the retail space. At the tender age of 8, Andrew and his family were relocated to Johannesburg South Africa. At an early age , Andrew demonstrated he had a talent for the arts , in particular , drawing, even though being left handed. He attended Meredale primary school , where he finished grade 7 in 1977. In 1978 he attended John Orr technical high school for boys. After matriculating in 1982 , Andrew went to Wits school of Architecture located in King George street, Johannesburg, South Africa, where he completed his T4 National Higher diploma in Architecture in 1985 . During his practical semesters, Andrew worked as a junior technician at “Steve Wass and Associates” From there , Andrew completed his 2 year national service in the Military Police , VIP protection unit , and obtained the rank of corporal / Platoon sergeant. Having completed his National service in 1988, Andrew returned to “Steve Wass & Assoc” and remained there for 2 years. In 1990 Andrew joined “Taljaard Carter Architects” (now TC Design) where he formed part of the industrial team responsible for developing Strydom Industrial Park , Randburg , where he won his first design award , for the Trust bank building , located on the corner of Hammer Avenue and Langwa street. In mid 1991, Andrew decided to relocate to the UK , with the idea to pursue his architectural career in London. At that time the UK was going through a severe depression and architectural work was scarce, so , returned to South Africa , and took up a position with “Lupini Robinson Architects”. Their main sector was  petrol station developments , for Shell , BP , Engen and [Excel , which is now Sasol] . Andrew headed up the Excel team, and soon became an integral part of the practice. In the latter part of 1993 Andrew was offered a more senior position with “Winterbach Pretorious White”Architects , where he headed up a small team for the Total Service station upgrade project. In November 1994 Andrew got married to his wife Miche’le , and realized that a higher salary package was required to sustain a new family, and moved on to “Osmond Lange Architects”, whom at the time had just been appointed as the main professionals for the, now known , Melrose Arch. Andrew worked in the satellite office based on site in Melrose. After holding down the position for 18 months, sadly the project ran into financial difficulties , and many staff were retrenched , including Andrew, whom at the time, his wife had just given birth to their first child, so tough times .  “Terence Duff & Associates”  came to the rescue and offered Andrew a senior position, heading up the design team, the sector was in the industrial / retail market , in the form of motor showrooms, it is here where Andrew “cut his teeth” in project management , acting as Architect and Principle agent for a Delta Motor corporation dealership based in Durban North. This was one of many projects managed for “Terence Duff & assoc”,which included “Massey Ferguson”  in Mombasa Kenya, The Nissan dealership in Sandton, Delta motors dealership in Sandton.  In 1999 , Andrew was offered a senior position to run and manage a new South African based office for Mosenyane & Partners” , who’s HQ was / is based in Gaborone Botswana, and of course Andrew jumped at the opportunity. During his tenure , Andrew won his second design award , and subsequent R 8 000 000.00 project for the IDC. 2001 Andrew completed his B- Tech ( Arch ) (Wits) and also completed the Property Development Programme at UCT. At that time , South Africa dipped into a depression , the office in JHB wasn’t sustainable , and it was agreed to shut down the office , and thus retrenching Andrew ( for a second time in his career) “Frame International Architects” heard of Andrews retrenchment , and offered him a senior position , as office manager and senior Architect , where he managed a team of 12 professionals . Andrew was intimately involved in the revamping and revival of the “Randburg waterfront ” , The name was changed to “The Bright water commons”, a 3 year project which was very successful. During that period Andrew worked on many other projects, including a shopping Centre based in Brisbane Australia. Andrew also headed up a Shopping Centre development in Accra Ghana . After many promises from the MD of Frame that Andrew was to make partner , which never came to fruition, Andrew decided to move on to head up yet another Architectural firm , in the form of the “Afhco Group” owned and managed by Wayne and Renny Plit , The group consisted of “Afhco Holdings , Afhco Properties , and Afhco Projects ” The brief was very straight forward ,   create a portfolio of Affordable housing within Johnanesburg CBD and surrounding areas. Holdings would purchase old and abandoned buildings within JHB CBD , and hand over the building to Afhco Projects , where Andrew and his team would literally gut , and redesign the entire building into either affordable housing or student accommodation, These buildings included , 120 End street , which Andrew also introduced a shopping mall and 2500m2 Anchor tenant space for “Checkers” , The Greatermans building , Lustre House, Stutterfords building , which is actually a heritage building built in 1876 , A PHRA-G application had to be worked up and submitted , which was successful, Other buildings included Newgate , Platinum Place , Sambro House, Aitkenson House to name but a few. Andrew was infact involved in developing over 50 buildings within the JHB  CBD. During Andrews 8 year tenure with Afhco , Andrew experienced 2 attempted hijackings and decided to call, it a day at Afhco , and was actually poached by Ster-Kinekor to assist in the rebranding of the Ster-Kinekor brand , which still stands today. Andrew was also involved in the development of the new “cine prestige” the flag ship being in Rosebank. In April 2010 Andrew decided it was time to go it alone , and thus “ASA CONSULTING ARCHITECTURAL SERVICES PTY ( LTD)” was born, what started off as a little practice working out of his dining room .. long before covid – 19 days , Andrew fought to break into a very difficult market, he persevered, and 13 years later, we are still going strong , having survived the pandemic , we have a staff compliment of 4 professionals , as well as a network of other professionals , including structural / civil engineers , Town planners , Fire consultants and registered contractors.