Written for YourProperty

Our Property Poser experts have received a question from a couple who had purchased a plot some four years ago.

Having decided to build on the plot in stages, they requested a quotation from their neighbours – who happen to be builders – for a foundation and one room with a bathroom. A price was agreed on, the amount was paid and the work comleted.

The couple also enquired as to a price for a three-bedroom, timber-frame house, but no deal was struck in respect thereof.

Some two years passed and the builder then, with the knowledge of some of the couple’s family members, took it upon himself to build the house as a “present”.

The couple were kept from their plot by the family members during construction and the house was presented as a surprise upon its completion.

The builder now wants them to sign an agreement whereby they will pay interest on the price charged and also allow the builder to take a mortgage bond over the property.

The couple do not have the funds to pay for the work, the price of which has also increased substantially from their first enquiry.

The couple own the plot and the principle applicable is, according to Rian du Toit from Du Toit Strömbeck Attorneys in Port Elizabeth, that which is attached to the land accedes to the land (the principle of accessio). “The structure on land therefore generally belongs to the owner of the land (inaedificatio).”

Du Toit says from the readers’ instructions there was clearly no contractual basis upon which the builder could rely in order to claim the building fee and expenses.

“The mention of the house being built as a ‘present’ is also interesting, but it appears the word was used in the context of a surprise and that they always expected payment. A mere expectation is however not sufficient.”

Du Toit suggests that this be clarified as the true intention of the builder may be relevant in establishing whether his action, should he bring one, is valid in law.

Charlotte Vermaak from Chas Everitt in PE says the fact that a family member was aware of the process would not necessarily be sufficient to bind the couple to a contract unless that family member acted as their agent.

“This could not be the case as the couple were not aware of the building. It seems the builder’s remedy would be in the realm of unjustified enrichment.”

This principle, says Vermaak, applies when one person has been enriched to the detriment of another without there being any contractual or legal basis upon which the enrichment and impoverishment took place.

“For purposes of this examination it is assumed that the house is not removable and that the intention of the builder was that the house would become part of the land.”

Should the builder be successful in a claim based on unjustified enrichment, he would probably not be entitled to profit and could thus only claim those expenses actually incurred in respect of both necessary and useful improvements to the plot, according to Vermaak.

Ask your property related questions here