Pillay v Moonsamy: Encroachment and Removal of a Roof

This article examines the case of Pillay and Another v Moonsamy and Another heard in the Kwazulu-Natal High Court, Durban.

Introduction to Encroachment Law

Encroachment in property law occurs when one property owner builds or extends a structure onto an adjacent property without permission. This can lead to disputes as it interferes with the neighbouring owner's right to fully enjoy their property. Courts have the discretion to order the removal of the encroachment or award damages, depending on factors such as the extent of the encroachment and any delay in seeking remedies. The primary aim is to balance the rights of both parties while ensuring orderly urban development.

Facts of the Case

In Pillay and Another v Moonsamy and Another, the applicants (Pillay and another) sought a court order for the removal of a portion of the respondents' (Moonsamy and another) roof that encroached onto their property. The encroachment was confirmed by a professional land surveyor, who determined that the respondents' roof extended 78cm into the applicants' property. The respondents argued that the roof, built around 2007, was constructed according to approved plans, and they should not be held responsible for the encroachment. However, the encroachment was only noticed by the applicants in 2017, after a decade without complaints.

Court's Reasoning

The court acknowledged the principle that the current owner of a property inherits both the benefits and liabilities associated with historical improvements or alterations. Despite the respondents' claim of adhering to approved plans, the court held them responsible for the encroachment. The court emphasized that the encroachment violated the applicants' property rights and constituted a deprivation under Section 25 of the Constitution, which protects against the arbitrary deprivation of property.

The court considered the primary remedy for encroachment, which is typically the removal of the encroaching structure. It weighed the disproportionality between ordering the removal of the roof versus the damage or inconvenience caused to the applicants. Since the applicants promptly sought the removal of the encroachment upon discovery and the respondents did not offer any substantial compensation or alternative resolution, the court found in favour of the applicants.

Conclusion

The court ordered the respondents to remove the encroaching portion of the roof within 60 days. It underscored that allowing the encroachment to remain would set a dangerous precedent, undermining the principles of orderly urban living and property boundary respect. The respondents were also ordered to pay the costs of the application, highlighting the legal principle that property owners must respect their neighbours’ property rights and the boundaries between properties.

 

Building Plan Disclosure in South African Property Sales: Legal Obligations and Implications

Introduction: When engaging in property transactions in South Africa, the spotlight typically falls on essential contract terms such as party capacity, property description, and purchase price. However, an often overlooked yet crucial aspect is the disclosure of approved building plans prior to the transfer of property ownership. This article delves into the legal requirements surrounding building plans, the implications of the voetstoots clause, and the protections afforded to buyers under recent legislation, illustrated by the landmark case of Haviside vs Heydricks and Another.

The Legal Framework

The National Building Regulations and Building Standards Act

The National Building Regulations and Building Standards Act, No. 103 of 1977 (the Act), strictly prohibits the erection of any building without prior written approval from the municipality. Violating this requirement is a criminal offense, subject to fines upon conviction. Despite this stringent regulation, the absence of approved building plans does not automatically impede the transfer of property ownership. However, financial institutions may require these plans before granting a mortgage bond.

The Voetstoots Clause and Approved Building Plans

Understanding Voetstoots

A voetstoots clause in a sale contract means the property is sold "as is," including all defects. Defects are classified as either patent (visible) or latent (hidden). Sellers are not liable for non-disclosure of patent defects, but they must disclose latent defects. Courts have determined that the lack of approved building plans constitutes a latent defect.

Case Study: Haviside vs Heydricks and Another

The case of Haviside vs Heydricks and Another (2014(1) SA 235 (KZP)) is pivotal in understanding the application of the voetstoots clause concerning latent defects. In this case, the seller unknowingly sold a property lacking approved plans for a garage and carport. The court recognized the absence of these plans as a latent defect. However, since the seller was unaware of this defect and had not intended to defraud the buyer, they successfully invoked the voetstoots clause. This case underscores the necessity for buyers to prove the seller's knowledge and intentional concealment of defects to hold them liable.

Enhanced Buyer Protection

Property Practitioners Act, No. 22 of 2019

Historically, sellers were only liable for non-disclosure of building plans if the buyer could prove intentional concealment. The Property Practitioners Act, No. 22 of 2019, introduced a mandatory disclosure form that sellers must complete when using property practitioners. This form requires sellers to declare whether all necessary consents and permits, including approved building plans, were obtained for any property improvements. While this form significantly enhances buyer protection, it applies only to sales facilitated by property practitioners, not private transactions.

Practical Implications for Sellers and Buyers

Sellers are strongly advised to disclose the status of building plans proactively. Not only does this foster transparency, but it also mitigates the risk of legal disputes. Buyers, on the other hand, should insist on reviewing these plans as part of their due diligence, particularly in private sales where the protections of the Property Practitioners Act do not apply.

Conclusion

In the complex landscape of South African property transactions, the status of approved building plans is a critical factor that demands attention. The legal framework, particularly the implications of the voetstoots clause and recent legislative changes, underscores the necessity for transparency and due diligence. The case of Haviside vs Heydricks and Another highlights the intricacies involved and the potential consequences of non-disclosure. Ultimately, both sellers and buyers benefit from clear communication and thorough documentation, ensuring smoother transactions and minimizing legal risks.

By understanding and adhering to these legal requirements, stakeholders in property transactions can navigate the process more confidently and responsibly.