When a house or a structure is built on immovable property the law requires the plans to be drawn up in a particular manner and approved by the relevant Local Authority with jurisdiction.
Thus it is generally expected 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 unapproved or no plans for their house years later when they want to make alterations to their house or when they want to sell their property.
Thus, 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.
The National Building Regulations and Building Standards Act 103 of 1977 requires owners to obtain Municipal approved plans before the following through with any building works on a property. The compliance with such regulations is usually enforced by the relevant Municipality involved.
Owners need to obtain approval to build or alter their property from the municipality and need to comply with building regulations by obtaining building plan approval and having the building site inspected by the municipal inspectors.
These steps are fundamental to ensuring that the minimum standards of health and safety are kept, thus ensuring the compliance with all the necessary laws which are imposed on such an undertaking.
If the work that is done is of a minor nature and does not pose a danger to or interfere with the amenities of the neighbourhood then the building plans may, in such a case, not be required.
The relevant Municipality should be contacted for advice if there is any doubt as to whether or not the work would be considered minor in nature.
Consulting an experienced architect or draughtsman when preparing the plans for Municipal approval may be beneficial as such professionals will have a working knowledge of the standards and regulations applied by the Municipalities within their area of practice.
A builiding inspector is allowed to order the ceasing of construction of a property in the case of an owner choosing to build without approved plans.
The building inspector may also obtain a court order for the structure to be demolished at the owner’s expense and the owner will be liable to pay for all associated legal costs.
With regards to a property that is being sold, the purchaser in question may only request proof of approved plans if there is a clause in agreement of sale that pertains to such a request.
The purchaser will have no legal right if no such clause exists in the agreement and the absence of such plans would then be considered as a latent defect, thus they’ll governed by ‘purchase as is’ principle.
A purchaser seeking to hold a seller liable for unapproved alterations or structures, or in the absence of approved plans will therefore be required to institute legal action against the seller and have to prove that:
(i) at the time of contracting, the seller was aware that there were no approved plans in respect of the property;
(ii) the seller deliberately failed to disclose this information to the purchaser; and
(iii) that the seller’s failure to disclose such information, or withholding of such information was undertaken with the intention to defraud the purchaser which may prove difficult.
Such action would not likely succeed against a seller who purchased an unapproved property in good faith from a third party and was not aware of such non-approval.
If an offer to purchase agreement is subject to a purchaser obtaining a loan from a bank or other financial institution, financial institutions may, in some instances, grant said loan.
However, this loan will be subject to the receipt of approved plans in respect of the property being purchased.
If the plans supplied to the financial institution do not correspond to the property, the financial institution won’t provide the necessary approcal to proceed with the registration of the bond and the sale could be rendered null and void - this is especially the case if the loan is a suspensive condition.
In addition to this the seller will be left with the frustration due to the costs and effort that are required in order to rectify the problem if they still wish to sell the property.
They may also be liable for a fine for the illegal building works undertaken on the property without approval.
A prudent purchaser may wish to insist that such clause be inserted into the agreement of sale.
Such a clause would stipulate that the seller warrants that all plans are in order and have been approved by the relevant municipality concerned, failing which the seller will be in breach of the agreement affording the purchaser a number of remedies such as specific actions or even a cancellation of the agreement.
Contact Van Deventer & Van Deventer Incorporated. We are able to assist you to make sure the relevant clause is added to your Offer to Purchase.
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