Nov 102014
 

The Implications of Selling a House
Without Approved Plans

Home-floor-plans-Additions

If you are selling your house, and don’t have approved plans, you could find yourself in a lot of trouble. 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.

Legal Implications of Selling a House Without Approved Plans

Since the law requires everybody to have plans drawn up in a particular manner, and approved by the local authority in their area, it stands to reason that every house will have plans. But this is not always the case, and 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.

Hardly a day goes by that we don’t get asked questions on this website that relate to issues concerning plans. Sometimes people only discover that there are no plans years after they have bought a property, either because they eventually want to do alterations, or because they want to sell. Other times people find at the point of sale that a house they are buying does not have plans, and they want to know whose responsibility it is to have plans drawn up retrospectively (“as built”).

The reality is that if alterations and additions have been carried out on a property without municipal (local authority) approval and the property is then sold, it can become quite a complex legal matter.

An article by STBB Smith Tabata Buchanan Boyes that we have referenced gives some clarity about the implications of selling a house without approved plans.

Are Building Plans and Building Approval Always
Required for Houses?

As STBB explain, the National Building Regulations and Building Standards Act  specifies 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. So it is they that give approval (or deny it) for all building work and renovations on ALL properties. “Minor building work”  is viewed differently and most municipalities will be more lenient when it comes to minor building work.

The Act states that the municipality, at its own discretion, may be approached for a relaxation of the necessity to obtain approval of plans. But note that this must be asked for and approval received in writing. Read our page on minor building work  for more information.

How the Issue of “Voetstoets” Affects
Building Approval and Plans

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.

Note that the position is somewhat altered if the Consumer Protection Act applies to the agreement between the parties, e.g. where the seller is a developer.

Our law takes into account 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 unauthorised 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.

Problems That Can Arise

The lack of approved plans could lead a municipality to refuse to allow any further renovations a purchaser might have had planned. In the worst case scenario the municipality could order that the illegally erected structure or additions be demolished.
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.

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, (though not all), the financial institution will want to see up-to-date approved plans before finance will be granted. 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.

The local authority is also entitled to levy fines on any “illegal” building work that was done without approval.

There is more on the “Voetstoets Clause” and the CPA (Consumer Protection Act) here: the-consumer-protection-act/the-cpa-the-voetstoets-clause

  95 Responses to “House Without Approved Plans”

Comments (95)
  1. Hi

    I bought my house in Octobet 2015 from a real estate agent and got finance from FNB.
    I now want to extend and want to do it the right way.
    I went to my local munisipality to get my house plans. After looking in the file of the erf NO plans could be found for my portion. After talking to the estate agent and attorneys whom did the whole transaction they just said its impossible because there has to be approved plans. Eventually I got hold of the previous owner he was also the developer of this property.

    The plans he submitted in 2009 June was rejected in September 2009. But as I can collect he started building before the plans was approved. The original plan was then collected in February 2010 i assume to be revised. But as it sits now the house does not have aprroved plans nor can the original plan be found.

    I spoke with the previous owner advising him about this and his comment was how can I pay taxes and water and lights if the house wasnt legally built.

    Please advise what my next steps shoul be.

    Thank you

    • Hi Jakes, I think that you have a problem and need to get legal help. It seems like there are violations all down the line from the submission of plans in the beginning that were not approved to FNB financing (approving a bond) a property without checking that the house has up-to-date approved plans. It would appear that you have a claim against all parties for this. Check with your transferring attorney and take it further with another lawyer. I suggest that you lay a complaint with the estate agency board because I believe estate agents have a duty to check and supply approved plans with any house that they offer for sale. Please update us how this turn out.

  2. I did not know that the house I sold was rebuilt on the inside thus changing the floor plan. The buyer asked for a floor plan and I produced the plan that was registered at Mogale Municipality’.
    This plan is unlike the present structure. The offer to purchase did not state that I must submit Approved Plans. It asked for a floor plan.
    I have already discounted the price with R160 000 as I had a long list of Bad Non Paying Tenants.I am not willing to have Approved Plans drawn up and have suggested that the buyers Cancel the OTP if they are not happy with the 1935 draught which was handed to them.
    The alternative to cancellation of OTP is for them to continue with the process but their Attorney is advising them to put pressure on me to draw up APPROVED plans. What now?

    • Hi Patrick, If the house as it is now is different to the original plans and no updater to those plans was ever submitted then the plans have to be updated. Who pays for them is up for negotiations between you and the buyer. I do not understand what you mean by the “1935 draught”. If the buyer needs a bond to buy the house then it is the bank that wants approved plans before approving any bond on the house.

  3. I have a unit in a sectional title complex in Pretoria. The complex was built in the late 70’s early 80’s. Over the years, some owners altered / extended their units without local authority approval (it now seems). A recent event spooked the Trustees and they are now in the process of looking at ways to legalise these alterations/extensions. One of the requirements is to submit the original building plans. But no current owner has such a set. The destruction of public records in the Munitoria fire of 1997 does not make it easy. Are there copies available somewhere? Having that will save the owners R88 000 in architect fees.

    • Hi Hanna, I am afraid to say that there is no way around this and the municipality has the right to ask for plans. You might ask for legal advice and see if your complex could get a class action against the local authority for loss/damage to your plans. My question is surely they had insurance that covered fire damage and should have been paid out for the loss of all the plans.

    • Also, R88000 sounds very steep to retroactively produce plans. I paid about R5000 plus R1500 runner’s fees for the same thing in a similar situation. Find the right architect and keep it simple. I must admit I then had to pay R5700 for new sectional plans so also budget for that.

  4. Hi There,
    We are in the process of the transfer being finalised. The current owner supplied approved plans, however the pool, lapa and carport are not reflected. Is it advisable to continue with the transfer before the approval is granted on the condition that the Seller is liable to get the plans redrafted and submitted to the relevant body for approval? This clause was included in the OTP

    • Hi Jackie, There are some local councils that do not require plans for “Minor Building” and this includes carports, lapas and swimming pools in some cases. I suggest that you contact your local authority and ask them what their specific requirements are for each of the three separately and then depending on their answer you will know how to proceed.

    • I suggest you delay your transfer citing that the seller needs to comply with that clause until you have in writing from the municipality that all is in order. And don’t let the transfer go through until the seller has complied with anything that the municipality says needs to be done because once transfer has happened they won’t do it and you can’t easily make them do it.,

  5. Hi
    I would like to know how to check for updated House plans if you buying a house cash.when
    To ask for them before or after I sign offer to purchase.house is in Pietermaritzburg kzn

    • Hi Sihile, You can ask for them upfront and they are obliged to give them to you. If they cannot supply you with “APPROVED” plans then walk away as you might have costs including penalties later on that you do not want.

  6. I bought a house directly from the developer in a new sectional title complex. I now want to sell the house, 10 years later, only to find that the garage is not on the building plans. I did not do any building after buying the house, only put up a Louvre Deck (for which I was told I do not need plans). The garage was supposed to be part of the original plans. Whose responsibility is it to fix this mess?

    • I would say it’s the developer’s responsibility. You should have insisted on getting copies of the approved plans when you bought. Now you may have to prove that the developer built a garage that was not on the plans – and you may have to do this through legal channels.

  7. Hi,

    Please can you help me with what the process would be for submitting plans after alterations were made?

    Many thanks,

    Jacques

  8. Hi, we have put an offer in for a house, of which the seller says the boundary walls are not reflected on the municipal plans. Who is responsible for updating this? Is this expensive?

    • The boundary walls don’t necessarily have to be on the plans – but the boundary and building lines must be. In terms of the National Building Regulations, plans are not required for walls up to 1,8 m high.

  9. Good morning, is it legal to cancel an OTP if the seller does not have house plans?

    • If your offer required these to be supplied. Otherwise you will have to fight about it. You could also go to council and see if they have plans. I personally believe the law should be changed to make it mandatory for all sellers to supply plans.

  10. We put in an offer to purchase on a house that didnt have updated house plans, they build an extra granny flat on and a structure over a pool. We were approved for the loan with SA homeloans subject to the owners supplying the updated house plans. The owner is now not willing to get the updated plans, what is ourlegal right as surely the offer to purchase is a legal binding document? the owner cant decide not to sell to us because he isnt willing to update the house plans? we even offered to pay for the updated plans. Should he give us the option to update the plans and still buy the house or can he pull away from the sale as he is hoping a “cash buyer” will come along and buy the house as is?

    • The question is did the owner state in writing he/she would supply updated plans? Certainly the offer to purchase, if accepted, is legally binding. There may though be clauses relating to the bond – in terms of time and other conditions (including the need for updated house plans). If you really want the house you should probably negotiate with SA Home Loans and undertake to update the plans yourself. I’m guessing that 1) the seller doesn’t want to incur costs of new plans and 2) is afraid it might delay the sale unnecessarily. Just one other thing, if I were you I would have a look at the plans as they stand (if you haven’t already). Perhaps there are other issues e.g. other additions or extensions that haven’t been included on the plans.

  11. Hi we bought a house and enquired before the purchase if all extensions were on plan at municipality and was told they were. Now a year later the extensions roof is failing and it’s clear the extension was not built according to approved plan. Is there any way to keep previous owner or anyone else liable for the costs of redoing the roof?

    • This is the kind of thing that you need to get in writing. Plus, you should have asked for a copy of the plans. If you can prove that this is what you were told you can try litigation.

  12. Hi there
    We have purchased property – had bond finance approved etc etc. We have now erected a structure on our erf and have had to obtain the existing plans of the property – upon which the local municipality informed us that they do not have it (as it is too old????) and had requested it from the State Archives – who in turn do not have it either. Therefore, our residential property currently has NO PLANS. What would the procedure be to obtain these?

    • Was there a building already on the property when you bought it? And if you have erected a “structure” you should have had plans to do this. Sounds like a bit of a mess to me.

  13. i would like to know about how to approve a house plans which are going to be build in rural and stands are not registered or no records of the stand?

  14. i would like to know about how to get house plan approced if the stand is at rural area because most of the stand you might find that are not register or no records of the stand?

  15. The municipality has lost our building plans.

    we have inherited a house and need to get a copy of the plans but the municipality cant find them (only site plan).

    how do I proceed to get plans (finances are an issue).

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