National legislation known as the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) was promulgated to empower all municipalities in South Africa to enact by-laws with regards to town planning, land use and development in their jurisdictions, applicable to commercial, residential, industrial, recreational, tribal, farm and even state land properties.
It came into operation on 1 July 2015 with the purpose being to develop frameworks that regulate planning authorisations and promote consistency with regards to land development under a municipality’s jurisdiction.
One of the foremost consequences of the Act has been that before a transfer of property is effected legally, a certificate according to SPLUMA must be issued by the relevant local authority to certify that all land use and development provisions have been complied with.
For example, in Mbombela, the office of the Deeds Registrar issued a directive in 2016 that such certificate in required before any transfer can be effected as according to section 70 of its SPLUM by-Laws.
However, other municipalities did and still do not have specific mention of the issuing of this certificate when transfers are done, except that they require a certificate which seems to certify more or less the same.
This certificate is required to certify that the provisions contained in the authorisation of the land development were complied with, required for transfers in the new developments.
SPLUMA places the obligation therefore on municipalities to make specific incorporations within their by-laws to require the certificate to the effect that the property complies with town planning and land use provisions.
In order to secure this certificate, the owner of a property must obtain certification and attestation that;
Obviously securing the certificate and its approval will require the basics to be correct on the ground, and the owners of properties must ensure that all buildings on the property have approved plans, the use of the property is according to the land use zone of the municipality scheme, ensure that the buildings do not encroach outside the lawful boundaries of the property and such other.
Making sure of these will then make certain pertaining to the issuing of certificate upon application.
In the event that the property and buildings do not comply, one may appoint an architect to prepare accurate plans and lodge with the municipality or apply for rezoning with the municipality should the land use be in violation of the zoning scheme.
In the event where encroachment is claimed, the buildings may be demolished, servitudes registered for the areas in default, or such portions be purchased or exchanged between the disputing parties. Depending on the nature and extent of violation of the development provisions, the above may be considered in order to comply.
Under normal circumstances the conveyancer will provide the transferor of the property with the required application documents for signature and the application of the certificate will be lodged with the municipality by the conveyancer themselves.
Our able team of property attorneys and conveyancers in Cape Town and Johannesburg stand ready to comprehensively assist you in this regard as well as numerous other matters that are property related and more. Contact us to find out more.
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