Property Law Alert – Does voetstoots cover unapproved building plans?
Because there is a common law implied term in a sale agreement that the land and buildings are without latent defects (unless excluded by the parties in a voetstoots clause), purchasers often assume that this implied term provides a warranty that the necessary municipal approvals were obtained when buildings were erected on the property.
Not necessarily! A recent Supreme Court of Appeal decision held that the absence of such statutory approval constituted a latent defect in that, should alteration or demolition be required, the ordinary use of the property would be affected.
The liability for latent defects is usually placed on the shoulders of a purchaser by a voetstoots clause. Therefore, unless there is proof that the seller fraudulently failed to disclose lack of municipal approval for the buildings, there is no liability on the side of the seller for this defect.