INTRODUCTION
It is common knowledge that when a house or a structure is built on an immovable property that the law requires the plans to be drawn up in a particular manner and approved by the relevant Local Authority with jurisdiction. Therefore, it stands to reason that every dwelling or house will have a set of plans. However, this is not always the case and sometimes people only discover that there are no plans for their house years later when they want to make alterations to their house or when they want to sell their property. Having approved plans for your property has therefore become a major concern and in many instances an issue for many South Africans buying and selling property.
“No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.”
Clause 4.1 of the National Building Regulations and Building Standards Act 103 of 1977
WHY SHOULD I HAVE APPROVED BUILDING PLANS?
It is a legal requirement in South Africa to obtain planning permission prior to building, renovating or extending your home, as per Section 4 (1) of the National Building regulations and Buildings standards Act, which states: No person shall, without the prior approval in writing by the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.
WHAT WILL BE THE CONSEQUENCES IF I SELL A PROPERTY WITHOUT APPROVED BUILDING
PLANS?
If you should find yourself in this situation, there are certain recommendations that can assist you in resolving a potential crisis before it happens. You have three options from which to choose.
- Obtain approved plans for all unapproved buildings/additions: You
will need a site plan of the unapproved buildings and submit the
plan with your online application for approval to your local
authority. - Sell your property subject to obtaining plan approval. You can
commence marketing your property immediately, submit your
plan and application and, should you receive an offer, make it
subject to providing approved plans to the purchaser prior to
transfer. - Let the purchaser acknowledge the absence of approved plans and
accept liability for the risks associated therewith in the sale
agreement: This would only be advisable where the purchaser
intends to renovate or alter the building in which case new plans
would in any event be required.
As indicated above, it is illegal to alter an existing structure or construct a new structure without approved building plans or permission from the Local Authority. The consequences if you SELL your property without approved building plans can include, but not limited to the following:
- Prosecution by the Local Authority (When you are still the registered owner)
- The sale being cancelled due to the fact that the buyer and or Financial institution require approved building plans before registration.
- The Buyer taking Legal action against the seller at a later stage once he discovered that the building plans does not correspond with the structures on the property.
We would therefore strongly suggest that you confirm that building plans for all structures are available before listing the property. And in the case of a sectional title scheme that the section plan has been amended and approved.
THE LAW
National Building Regulations and Buildings Standards Act
The National Building Regulations and Building Standards Act 103 of 1977 obliges owners to obtain Municipal approved plans before the commencement of any building works on a property. The compliance herewith is enforced by the Local Authority. It is a criminal offence to construct any structure without prior approval and you can be prosecuted there is any illegal structures on your property even if you did not build them. The owner is personally responsible by law to have approved building plans of the propertyand all structures thereon.
The Consumer Protection Act
If the seller has chosen to build without having the plans approved, this is illegal and becomes your problem as the new owner. The reason for this is, in terms of the Consumer Protection Act (CPA), if the seller is engaged in a once-off transaction (i.e. the sale is not part of his usual day-to-day business) the Voetstoots Clause still applies, subject to any other relevant clauses agreed to in the Deed of Sale.
THE SECTIONAL TITLE ACT
In terms of the Sectional Titles Act, 1986 you can now own a part or section of a building, together with joint ownership of the land on which the building stands as well as common parts of the building that have been set aside for your exclusive use (in partnership with the other owners in the block)
A sectional title scheme can include flat – and other forms of high-density housing, such as cluster housing and duplexes and are attractive alternatives to freestanding homes. As an owner, you will be jointly liable for the upkeep of the building. It would therefore be unwise to buy a flat in a block clearly in need of major repair. A serious defect affecting the entire building could be very expensive to repair and your levy would probably be increased to meet the cost of renovations. In some cases, ‘special levies’ are raised to carry out particular improvements or repairs.
Selling an apartment or townhouse is different to selling a house because it is part of a larger property with a community of owners and overseen by a governing body, the body corporate. Therefore, in addition to the standard documentation required for a property sale, you will need a levy clearance certificate from the body corporate and the buyer’s bank also needs documentation for them to assess the financial status and management history of the sectional title scheme before
they approve a bond.”
Every sectional title scheme comprises of three elements, owners’ sections, exclusive use areas and common property. It is important for you to understand the differences, so that you know, as an owner, what is yours and what is not, and what use/entitlements you are paying levies toward.
Owners’ sections are the houses within a scheme that are individually owned and are registered in
the name of the owner. These areas can sometimes include servant rooms, storerooms or garages. The extent of your section is determined from the sectional plans filed in the Deeds Office. You should always check precisely what you are buying, before you buy it. It often happens that estate agents and even sellers are unaware of what they own and that unsuspecting owners are ‘given’ less
than they bargained for when the transfer takes place.
A unit is comprising of a section in a scheme, together with an undivided share of the common property in the scheme, calculated in accordance with the owner of the unit’s participation quota in the scheme. When you buy into a scheme, you don’t only buy your section, you also buy a bit of the common property and you own a bit of the common property along with every other owner, but in undivided shares (ie it can’t physically be divided up and allocated to each of the co-owners individually).
Exclusive use areas are portions of the common property in respect of which an owner will pay a levy for the exclusive right of use of the said area and which can then be used exclusively by the owner, to the exclusion of all other owners in the body corporate. Common types of exclusive use areas include parking bays, gardens, storerooms, and balconies. However, as above, you need to check the sectional plans (and sometimes the body corporate Management rules) to determine whether a particular piece of ground is an exclusive use area, part of a section or part of the common property. There are two types of exclusive use right – those shown on the sectional plan and those recorded in the scheme’s Management rules. Exclusive use areas are transferred or allocated to an owner in a scheme in a different way to which a unit is transferred to an owner, so you need to check that any parking bay, storeroom, garden, etc., that you are buying, is being ceded or otherwise allocated to you at the same time as transfer passes to you of your unit.
Common property is the remainder of all of the land that comprises the scheme (including exclusive use areas but excluding owners’ sections). All common property is owned by all of the owners in the scheme in undivided shares based on the owner’s participation quota, and is for the use and benefit of all members of a scheme. An example would include a pool area or a communal garden or the driveway. The rights of use of the common property areas can, however, be limited in terms of the management rules of the scheme. It is essential to check the rules thoroughly to ensure that you are happy with them, before you sign your sale agreement purchasing a unit in the scheme
Financial institutions
In many cases, an offer to purchase a house will be dependent on the purchaser obtaining home loan finance from a bank or other institution. And in most instances, (although not all), the financial institution will want to see up-to-date approved plans before finance will be granted. If the plans approved by council do not match the house as it stands, then the sale could fall through and set the seller’s plans back for quite a length of time, together with additional costs to rectify the problem. It is therefore of the utmost importance that sellers ensure that they have municipal approved building plans before selling or marketing their property.
The “Voetstoets” Clause
The agreement made between two parties when a property is sold will in most instances include a voetstoets clause. Essentially, this clause indicates that the purchaser accepts the risk relating to defects existing at the time of the sale, patent or latent (but not visible). The exceptions to this clause are instances where the seller deliberately and fraudulently conceals latent defects from the purchaser, that he or she was aware of at the time – in which case the seller will remain liable for these defects. But of course, the purchaser will have to provide evidence that the seller knew what was wrong.
Our law considers that any property with buildings erected without municipal approval is a property with a latent defect. The voetstoets clause will normally cover latent defects and a seller will not automatically attract liability if he sells a property with unauthorized building works. But if the seller knows that there are no plans and he organized and did the renovations himself, and he deliberately does not disclose this fact (with the intention to defraud the purchaser), the seller cannot hide behind the voetstoets clause.
A (latent or patent) defect that is of a significant nature, and affects the use and enjoyment of the property, does allow the purchaser certain remedies. The most far-reaching of these is cancellation of the agreement, which he is entitled to do, if the purchaser can prove that the defect is so serious that he would not have bought the property had he known this. Other courses of action include the reduction in purchase price or a claim for damages, depending on the seriousness of the defect and the specific circumstances involved.
When a property is being sold a purchaser may only insist on proof of approved plans if there is a clause to that effect in the agreement of sale. If no such clause exists in the agreement, the purchaser has no legal right to demand such plans and the absence of approved plans, if applicable, would then constitute a latent defect and would be governed by the voetstoots principle (depending on the terms of the agreement in question as well as whether the Consumer Protection Act 68 of 2008 finds application).
Your Insurances
Insurance companies may not cover insurance claims to any improvements to the property, where there are illegal alterations or improvements (no approved building plans). Even if these illegal structures are not attached to the main (Dwelling) structure, it may result in the invalidation of the entire claim for all improvements. Insurance companies may not pay for damages to the home, even if the illegal structure is a perimeter wall. This is further compounded if there is a home loan on the property, as the owner will need to maintain bond repayments, irrespective of the house being damaged and the insurance company not being prepared to pay for repairs.
It is crucial for homeowners to ensure that there is an approved building plan in place for all improvements to the property and that potential home buyers ask for a copy of an approved building plans when purchasing a home. If you make an alteration or improvement to your property, you must increase the insurance cover to include this, failing which the insurer will only pro-rata any claims for damages that they receive.
Is the council responsible to keep my approved building file?
The T.B.C.O is not by law required or responsible to keep approved building plans of any property, as mentioned previously the registered owner must keep a copy of the approved building plans for all structures. The T.B.C.O keep copies of approved building plans; these copies are only kept for their use. However, if copies of approved building plans are available for a certain property the registered owner may request, in writing, copies from the T.B.C.O.
Approved building plans vs Occupancy certificate
Once the building plan has been approved, the construction phase will be completed and thereafter the Building Inspector must conduct a site inspection. If the structure complies with the approved building plans and all requirements are met as set an occupancy certificate will be issued in terms of the N.B.R.
Contrary to popular believe, an occupancy Certificate is not only required for a new dwelling, but an occupancy certificate must be issued for all building plans. This acts like a completion certificate, once an occupancy certificate has been issued that confirms that the structure complies to the N.B.R and the file is completed and closed. If an occupancy certificate was not issued building plans are only valid for 12 months, thereafter the plans laps, and a new set of plans must be submitted to the local authority for approval.
Not all buyer are aware of this and not all financial institutions request an occupancy certificate, however we strongly advise all our clients to obtain an occupancy certificate as to complete the building plan proses, once you resubmit the building plans it must comply with the current regulations and laws..
Type of structures that must have approved building plans
All types of structures required building plan approval, except for structures classified as minor building works as indicated in the N.B.R. Wendy’s, Lapa’s, Carport’s, swimming Pools and Louver Decks are categorized as a minor building work. As per the N.B.R building plan approval is not required for minor building work, however permission must be obtained from the Local Authority.
The T.B.C.O require formal submission and approval of all structures, including structures classified as minor building works due to the fact it may impact several other departments as well as the neighbours and not only the T.B.C.O. The following structures may affect the following departments as indicated below.
If you’re selling
Make sure you have approved the building plans that correspond with the structures on site, we can assist you in that regard. We obtain all documents from the council and compile a full report on the property. This report will ensure there is no surprises or inconvenience during the sales proses.
This report will include over and above the previously approved building plans, if available, the Zoning Certificate, SG Diagram, Sewage slip as well as any other relevant documents or information.
The cost involved should not deter one from obtaining an approved building plan, as failure to have an updated and approved building plan may result in serious consequences, such as the demolition of the ‘illegal’ alteration, hefty fines or even prosecution. Although one might think that this happens only in extreme cases as building regulations may be poorly enforced, there are occasions where not having a building plan can have other severe consequences.
Conclusion
Firstly, if you are selling your property to avoid unnecessary cost and delays make sure your building plans are up to date before listing your property and if you are buying a house, and don’t ask whether the seller has approved plans, you might end up inheriting some very expensive problems
In short, make sure there is approved building plans that correspond to the structures on site, we can assist you in that regard. We obtain all documents from the council and compile a full report on the property. This report will ensure there is no surprises or inconvenience during the sales proses and afterwards
This report will include over and above the previously approved building plans, if available, the Zoning Certificate, SG Diagram, Sewage slip as well as any other relevant documents or information.
References:
- National Building Regulations and Building Standards Act 103 of 1977
- Tshwane Town-Planning Scheme 2008
- SANS 10400
Disclaimer: The content of this blog post aims to provide accurate information and educate the public, focusing specifically on properties in Pretoria within the jurisdiction of the City of Tshwane building control department. While we reference national building regulations, the interpretations and practices discussed are drawn from our experiences with the City of Tshwane building control department. Readers should be aware that municipal by-laws, town planning schemes, and other regulations and policies may vary between municipalities and are subject to change over time. Therefore, we recommend consulting with our team to verify the accuracy and currency of the information provided.
