Know your boundaries: who is liable for the costs of repairing defective boundary walls?

When purchasing property, it may come to light that the boundary walls may have some defects. The question arises on who, between a seller and buyer, will be liable to remedy this?

In order to discuss defects, one needs to discern between whether the defects are latent or patent in nature, and whether the Seller was aware of such defects. Patent defects are defects which are visible, and which are evident from an inspection by the purchaser, for example, such as cracks in the boundary walls; whereas Latent defects are material defects which are not visible and which diminish the use and enjoyment of the property. An example of this may be that the boundary walls are defective in that they are non-compliant with municipal by-laws.

Generally, it is the buyer's duty to inspect the general condition of a property when purchasing it and the buyer cannot later claim he or she did not notice such defects. However, if the defect raised is patent in nature, i.e., which is not apparent on careful inspection, and it can be proved that the Seller was aware of this, then the Seller may be held liable herein.

Often a clause is included in the Agreement of Sale which states that a property is sold "Voetstoots". This means that the property is sold "as is". This means that any visible patent defects, such as cracks in the boundary walls, would not be the liability of the Seller.

In terms of the defects pertaining to the boundary walls and by-laws, one would need to peruse the Agreement of Sale, as there may be a clause which further states that a seller shall not be responsible for the correctness of the boundaries or beacons, nor be responsible for pointing them out. Furthermore, this clause could include that the property is sold as described in the Title Deed and not be liable for any deficiencies in extent which may be revealed on any-resurvey. In this instance, the Seller also will not be liable to remedy this.

However, it may also be that the clause may state that the Seller confirms that the property has been built according to plans approved by the Local Authority and that in the event that the property has not been built according to such plans or contravenes building laws, then the Seller shall ensure that amended plans be submitted and approved, at their own expense. In the event that this clause is included, the parties can agree on a date in which such plans must be submitted and can further agree in writing that either the Seller will pay for the costs thereof, or that proceeds of the sale be held back to cover same.

Therefore, liability for defects in boundary walls will be dependent on the type of defect, as well as the clauses that are inserted in the Offer to Purchase.

Extract from Property 24