In the recently reported case of Haviside versus Heydricks, the Pietermaritzburg High Court grappled with the right of a seller to rely on a voetstoots clause, when the buyers of an old home discovered that a double garage was illegally built on the property, without approved plans.

The buyers wished to build a flat above the double garage, and approached the local council with building plans, seeking permission to go ahead. The council pointed out that the double garage was built illegally whilst the seller was the owner, without council permission. The buyers ascertained that the garage also did not meet building regulations, and would have to be rebuilt properly in order to support a flat. It would be a costly exercise to demolish the garage and have new plans drawn and approved and a new garage built. The buyers sought to hold the seller liable for these costs.

In the…