PROPERTY SALES STRATEGY · KZN UPPER HIGHWAY
An Illegal Structure & Bad OTP Clause
Nearly Cost This Seller R380,000.
WHAT THIS CASE DEMONSTRATES
Why unapproved alterations, illegal structures and vague contract clauses create massive financial liability for sellers.
Most sellers in the Upper Highway engage an estate agent, receive an offer, and sign the Offer to Purchase the same day it arrives, often under pressure, often without reading beyond the price. The offer in this case arrived at a figure the seller was happy with. The problem wasn’t the price. It was a broad voetstoots clause applied to a property with illegal structures and unapproved alterations, combined with a suspensive condition tied to the buyer’s bond that had no expiry date.
This left the seller’s property legally committed to a buyer who had no financing deadline to meet. A full property inspection with correct legal oversight would have prevented it entirely.
In South Africa’s property market, Unapproved alterations such as extensions, converted backrooms or even boundary walls built without municipal plans will carry latent financial liabilities that a standard agent-driven “voetstoots clause” fails to do safely. When a property has changed over decades (in this case, 22 years of family ownership), minor unrecorded changes or structural defects combined with a rushed Offer to Purchase create an open invitation for post-transfer litigation.
The Situation.
A seller in Hillcrest (in her late sixties) was relocating to the coast to be closer to family. She had owned the property for 22 years. Her agent brought an offer two weeks into the listing at asking price. She called Gordon the same evening, an hour after she had already initialled most of the pages. She wanted him to "just check it over quickly." He asked her to stop initialling and send him the full document before anything further was signed.
The Complexity.
The OTP contained three problems. First, the voetstoots clause was broad and would have shielded the buyer if the known damp issue in the back bedroom, which the seller had disclosed verbally to the agent but not in writing became a dispute after transfer. Second, the suspensive bond condition had no expiry date, meaning the property could remain off the market indefinitely while the buyer arranged financing. Third, the occupation date was set three weeks before anticipated transfer, exposing the seller to occupational rental risk if transfer was delayed, which it was.
The voetstoots clause was broad and dangerous. It failed to draw a legal boundary between ordinary wear-and-tear, a known damp issue in the back bedroom, and unapproved alterations carried out years prior. If the buyer discovered that modifications lacked municipal plan approval after registration, the seller could have faced a massive damages claim for breach of the National Building Regulations and Building Standards Act.
The Resolution.
Gordon negotiated three amendments to the sale agreement review before the seller signed: the voetstoots clause was narrowed and the damp disclosure was formalised in a written addendum; the bond condition was given a 21-day expiry with a clear lapse mechanism; and the occupation date was moved to coincide with anticipated transfer registration. The buyer accepted all three changes. The sale proceeded, transferred cleanly, and the seller avoided what could have become a R380,000 dispute over a defect she had tried to disclose but hadn't documented correctly.
Gordon De Beer
Property Lawyer & Strategist
Admitted Attorney of the High Court of South Africa
BA
University of Natal
LLB
University of Natal
Dip Mar. Law
Maritime Law
I.R.D.P.
Stellenbosch University
The Attorney's View
“Sellers are told the agent works for them. In most cases the agent’s mandate is to close the deal, which is not always the same thing as protecting your position. The Offer to Purchase is the most important document in the entire transaction. It determines what you can claim, what you’re liable for, and what happens if the buyer walks. Reviewing it after you’ve signed is not a review. It is damage control.”
Schedule a Confidential Consultation
Whether you have received an offer, are about to list, or have already signed and something feels wrong, the first step is the same. Understand your legal position before you make your next move. Gordon provides a free confidential consultation for property sellers across the Upper Highway and North Coast KZN.