Monthly Archives: November 2013

Seller’s protection under voetstoots clause limited

article2-bA seller’s protection under the “voetstoots” clause in a deed of sale for immovable property is not as “absolute” as some might think.  It is still the seller’s duty to inform prospective purchasers about all latent (hidden) defects in a property.

A seller’s failure to do so could cost the seller in the long run, as per a recent ruling by the Supreme Court of Appeal in Banda & Fynn v van der Spuy (781/2011) [2013] ZASCA 23 (22 March 2013).

Examples of latent defects are a leaking roof or a faulty geyser. It basically includes any defects that cannot be seen with the naked eye.  Prospective purchasers will, for example, not see water marks on a ceiling resulting from a leaking roof, in “dry” months.

In the abovementioned case the sellers failed to inform the purchasers about the true extent of the damage to the property’s roof.  The sellers were aware of the fact that the roof leaked and had some repairs done to it to try and fix the problem. On closer inspection by specialists it was found that the cause of the leaks was twofold. Firstly, the wooden roof poles were inadequate to properly support the weight of the thatch roof and resulted in the gradual sagging of the roof. Secondly, the pitch of the property’s thatch roof was only 35 degrees and not 45 degrees as it should be, which would have at least ensured that rain water would run off the roof.  The specialists testified that due to the pitch of the roof being 35 degrees, water ran into the roof and caused the thatch to rot more quickly. It was found that the initial repairs were therefore not sufficient to stop the roof from leaking in future.  The purchasers only discovered this after registration of the property and the sellers had to fork out to replace the roof, as the problem could not be permanently solved by doing repairs to it. Even though the sellers were not aware of the bigger problem, namely the incorrect pitch of the roof, they were still held liable because they were aware that the repairs which they had done were not adequate.

On the other hand, patent defects are still the purchaser’s responsibility.  Prospective purchasers cannot sit back and think that if any problems occur after occupation, the sellers will be held liable.  A patent defect is defined as “one which will be apparent on an ordinary inspection”*.  An example of a patent defect will be a crack in a wall which shows through the paint.  It is a prospective purchaser’s duty to ask the sellers about such defects and get all guarantees from the sellers in writing.

It is clear that a mutual responsibility rests on sellers and purchasers regarding defects in a property. Sellers should be honest regarding latent defects and purchasers should be vigilant, when viewing a property, for any patent defects.  It will be wise for sellers to rather negotiate a lower purchase price due to defects in a property, and to disclose them to the purchaser.  Failing to be honest with the purchaser could have huge financial implications for the seller after registration of the property.

Source Reference:
Banda & Fynn v van der Spuy (781/2011) [2013] ZASCA 23 (22 Maart 2013)
*Dictionary of Legal Words and Phrases, 2nd edition, Claassen

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.

Extending a sectional title unit: What you should know

article1-bResidents in a Sectional Title Scheme are subject to the rules and regulations of the Body Corporate. These rules and regulations are governed by the Sectional Titles Act.

When you intend to make structural alterations to your unit there is a procedure prescribed by the Act that should be complied with before you start with the alterations. Any alterations that extend the boundaries or floor area of the unit will be seen as an extension.

The legal requirements that must be adhered to are discussed below.

Step 0ne:

The Act stipulates that you should first obtain the consent of  the Body Corporate. Usually the trustees will hold a general meeting and the members must pass a special resolution to agree to the alterations. To pass the special resolution you will  require consent of 75% of the owners that  are present at the meeting. This however could be time consuming as the members should be notified of the meeting thirty days in advance. Alternatively you can also obtain a special resolution by approaching all the owners individually and obtaining the consent of 75% of all the owners.

Step Two:

Once the Body Corporate’s  consent have been obtained, plans of the extension should be drawn up and approved by the Local Authority.

Step Three:

A Land Surveyor should be appointed to draw new Sectional Title Plans of the Scheme to incorporate the extension. These plans have to be approved by the Surveyor General.

Step Four:

Consult with your attorney who will  draw the necessary application for the registration of the amended Sectional Title Plan in the Deeds Office and the noting of the change in the extend of the unit.

If the unit is bonded the attorney will have to obtain the consent from the mortgagee of the unit.

With the application in the Deeds Office a transfer duty receipt must be lodged based on the increase in value of the property.  It is advisable to obtain two estate agents valuations based on the pre and post alterations value of the property.

The Surveyor must stipulate on the Sectional Title Plan that there is not a deviation of more than 10 percent in the participation quota of the unit as a result of the alterations. If there is a deviation of more than 10%  the attorney must obtain the consent of the mortgagees of each and every unit in the Scheme.

It is very important that  Sectional Title owners adhere to the legalities as a omission could cause extensive delays when the property is sold.

Source Reference:
Section 24 of the Sectional Titles Act

Sectional Titles, Share Blocks and Time Sharing, vol1, Prof CG vd Merwe
Demystifying Sectional Title , M Constas and K Bleijs
Sectional Title on Tap, vol 1, Tertius Maree
Article by J Paddock
Article by Rob White

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.