Before buying a property from a seller the purchaser of a residential property is to check, firstly, that the dwelling is built in accordance with the approved municipal plans.
Alternatively, the purchaser should include a suspensive condition in the Offer to Purchase that puts the obligation on the seller to provide a copy of the municipal approved plans of the dwelling, within a reasonable period of time so that the purchaser can compare the dwelling to the plans. The approved plans should have a council stamp and approval letter attached to the approved building plans. The purchaser should also contact the local council and make sure that these specific building plans are filed in their archives as approved plans.
Where a buyer accepts the transfer of a property and then discovers that it does not conform to the approved plans, he can find himself in serious trouble. The onus will then fall on the new owner [once the transfer has occurred] to settle any penalty fees due to the council for illegal structures on the property.
The right course to follow is for the prospective purchaser to insist on seeing a copy of the approved plans & occupation certificate before signing any sale documents and then, with the help of an architect or building inspector, to check them against the existing dwelling. Should they not comply, then the prospective purchaser has a few options: purchase as is; or make it a condition of the sale that new building plans be drafted and approved according to the dwelling, at the cost of the seller. [Remember to include in this agreement that the seller will be relieved from their duties once the new occupation certificate is obtained]. If the transfer has already occurred, the new owner could be liable for a fine imposed by the municipality for owning a dwelling that does not comply with the approved building plans or may have to demolish parts of the dwelling that are not approved in order to ensure compliance.
LEGAL IMPLICATIONS OF SELLING A HOUSE WITHOUT APPROVED PLANS
The law requires every homeowner to have building plans drawn up in line with their existing home. A lack of approved building plans is clearly a major problem for many people buying and selling houses and other buildings in all parts of South Africa.
In most cases, homeowners only discover that there are no updated building plans years after they have bought a property, either because they eventually want to do alterations, or because they want to sell. It then becomes a complex legal matter between the previous seller and the new buyer once the property is then being sold, and the discrepancies are picked up.
ARE BUILDING PLANS AND BUILDING APPROVAL ALWAYS REQUIRED FOR HOUSES?
The National Building Regulations and Building Standards Act specify the need for building plans and approval. More specifically, it is the local authority that governs exactly what can be done in terms of its zoning regulations and the NBR. For instance, in Cape Town, the zoning scheme will have different regulations to the zoning scheme in Johannesburg or Wellington etc. So it is they that give approval (or deny it) for all building work and renovations on ALL properties.
PROBLEMS THAT CAN ARISE
Once the new owner is ready to submit his new building plans for approval, the council will go through previously approved drawings to study if there were any unauthorized work done. The council will also use updated areal photos and maps to look at the property in question. Once it is discovered that there were structures erected without following the necessary approval processes, the council will stop the current submission process and request that the “as-built” structures be submitted first on a separate set of drawings. These drawings will then be sent to an external tribunal where officials will determine what penalty fee will be paid by the registered owner. The penalty fee can be as much as 100% of the building costs. The City of Cape Town has a tribunal meeting once a month to discuss and evaluate illegal structures. The lack of approved plans could lead a municipality to refuse to allow any further renovations a purchaser might have had planned, so if you are planning on buying a new home, please take care in making sure your building plans are up to date and in accordance to what is built on the site. If the plans lodged with 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.
You can read more on the Act here: