The position of buyers who sign for property where there are no approved building plans or where parts or all of the building have been erected in a way that does not comply with the National Building Regulations has changed twice in the last year or so.

Lanice Steward, MD of Anne Porter Knight Frank, has drawn attention to the fact that a ruling by the Witwatersrand High Court in 2007 has now been reversed by the Supreme Court of Appeal, reaffirming the commonly accepted understanding of the law.

The Witwatersrand Court had ruled that sellers could no longer 'hide behind' the voetstoots clause and pass the responsibility for ascertaining the legality of the buildings’ plans onto the buyer.

Traditionally the voetstoots clause protected the seller against later complaints about the building not apparent at the time of the purchase but did not relate to the building’s legality. Only in cases where the buyer could prove that information on this matter had been deliberately withheld or misinterpreted did he have recourse to law.

The Witwatersrand judgement deemed that, except where expressly stated, sellers guarantee the buyer that the structures covered by the sale have received local authority approval and that the voetstoots exemptions refer only to defects, not to any plan approval process.

This decision has now been overturned.

In the case of Odendaal vs. Ferraris the Supreme Court of Appeal reaffirmed the traditional understanding of the law — that the seller need not guarantee the building’s legal status.

Buyers concerned about the legality of the building they plan to purchase must therefore once again make appropriate enquiries or ask the seller to provide a written warrant regarding this. In Cape Town, said Steward, the situation is complicated by the fact that a fire in the old archives building at one stage destroyed the plans of certain of the older buildings, for example, those in the Wynberg Chelsea village.

Such old buildings can still be transferred to new owners without new plans being drawn up, but if changes or refurbishments are undertaken, as is often the case, the plans for the whole building have to be redrawn and submitted to the planning authorities for approval.