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. I have put an offer to purchase in on a house in Durban. Currently the property is being subdivided and the house I am buying has no plans. my offer to purchase is subject to approved subdivision and approved plans.

    I have been told since that the seller’s may not even legally advertise the sale of this property. Is this correct? Is my decision wise and safe or am I potentially in for a nasty surprise?

  2. Hi Penny,

    We in the process of selling our house, went to the municipality to get copies of our houses plans, was told that they no longer have them , they seem to have lost them. What do I do if the buyer insists on the house plans.

    • If you don’t have plans and the council has lost their copies, you could try a previous owner or the original architect. Otherwise you would have to have “built as” plans drawn up.

  3. Hi Penny

    Kindly advise if a home owner is required by the National Building Regulations Act to provide approved building plans to the new buyer, if this was not a specification in the Offer to Purchase?

  4. Hi there … so is there new legislation pertaining to Conveyancers,Buyers,Estate Agents requesting Copies of Building plans or As built plans to be processed? I draw plans in the Cape town Surrounding and seem to be getting more and more requests from Sellers to rectify Property Structures or submitt As Built plans .. Just as a Matter of interest so i may guide my Clients more efficiently with regards this Subject.thanks

    • Not that I am aware of, but since it’s your business you should find out. I do know that many people have problems getting plans for municipalities that simply lose plans! So they have to get them redrawn “as built”.

  5. I’m purchasing a property and my offer has been accepted. I forgot to put condition for the seller to give me the approved building plan but told the agent and the transferring Attorneys who relayed the message to the seller. The seller went to the municipality offices but there was no plan for the property. It is the only building on the stand/ERF. He bought the property at an auction as it was repossessed by ABSA. The NHBRC has confirmed it was enrolled before being built. Should I accept it to be transferred to my name before the approved plan is provided? Is Absa not supposed to have the plan since they financed it’s construction? Where else could a copy be obtained? What if the seller doesn’t want to counter sign the addendum to force him to provide it? Does voetstoots give him a right to sell an illegal property and what are my rights?

    • I do hope you sorted this problem out. If the house was enrolled with the NHBRC perhaps they can give you the name of the builder – who should have plans. Absa probably didn’t have plans – they wouldn’t usually. The only place that SHOULD have plans is the municipality. Voetstoets does NOT give him the right to sell an illegal property.

  6. My house in Roodepoort has a nice 4m x 4m Wendy house on stilts, including bath, toilet and hand basin.I’ve put my house up for dale and buyer has been told by bank to get plans and occupation certificate for the wendy house.
    Wendy house was there when I bought – OK so I thought – so how do I go about getting plans and relevant certificate and how long should it take. Will it have to be removed?

  7. We bought a house in Somerset -West ” voetstoots” Before signing contract we asked sales agent for house plans – assuming that we asked approved house plans, She gave us a copy of a piece of yhe plan. We asked for the full plan after signing the offer to purchase & received a plan drawn up in 1985 without alterations. We received also a drawing of street gates that were recently erected. At the municipality are no renovation plans & attorneys want us to sign for purchase without recently approved plans. What are our rights? We are told we did not specify on offer to purchase that we want “approved” building plans. We were put under a wrong impression that everthing is in place. Please advice!

  8. I’m in the proses of buying my first house. Registration has not been finalised. We would like to see the bulding plans, because we are concerned that two carports are not on the bulding plans. The agent is saying that it’s not in the original offering to purchase therefore it’s not the seller’s responsibility to supply us with the original plans. We will like to find out what we can do? Please

    • I would report the agent to the Estate Agents Board for being obstructive! Demand the plans because there may be more than just two carports that are not on the plans!

  9. A buyer message on Social Media. What to do in this case? : As jul n huis in George koop maak asb seker by die munisipaliteit dat alle aanbouings op plan en goedgekeur is. Ek het n huis in Denneoord in 2012 gekoop. Verlede jaar verkoop. Daar word toe n bedrag geld van my teruggehou. Afdak. Motorhuis in wstel verander en wendy wat nie op plan was nie. Die vorige eienaar F. Coetzee het 2 briewe van die munisipaliteit (in my besit) gekry….let wel. In 2006 en 2011 wat hom aanbeveel om alles op plan te kry. Nie gedoen nie. Verkoop die huis aan my. Koopkontrak se alles is op plan en goedgekeur. Geteken deur agent en eienaar. Nou hou die prokureur my geld terug totdat ek als op plan en goedgekeur het. Hoe onregverdig is dit nie.? Prokureur en agente het weggestap met hul vet komissie en betaling nie hul werk gedoen nie. Eienaar met sy geld vir die huis en ek met n groot hap uit my sak. Prokureurs se dis nie hul plig om om toe sien dat als op plan is nie en agent trek hul skouers op! Maak dus seker voor jul huiskoop asb.

  10. where can I find lost building plans for a house in the midrand area?

  11. If you buy a house and it is stopped because owners need to draw up new plans due to buildings that are not on the plans. What is the flow of the process and how long can it take till approval

  12. we bought a House 2014, the house is falling now, we managed to get the PLAN now, but it has the NHBRC number and Tshwane stamp, but now the stamp is cancelled, soo how is the plan get an approval stamp then gets cancelled after selling the house. please help.

  13. If you see a house you want to buy can you ask for the house plans

  14. hi Penny,

    I want to add cottages on top of garages and maids cottage to rent it out and I was told that roodepoort town plan will not approve the plan because the house and the garage are separated. can I register my house as a business?

    • You need approved plans to be able to build and only the municipality will be able to tell you whether you can run a business from your house.

  15. hi my building plans burned down with munitoria now i need to get new plans, and get it approved with a electic, plumbing and engineer certificate to get a occipation certificate. all at my cost its going to cost me about 30 000 rand, so who is taking the financial punishment for the building burning down…………………ME
    SEEMS UNFAIR

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