BUYING PROPERTY WITHOUT IT HAVING APPROVED PLANS

Every property owner in terms of the National Building Regulations and Building Standards Act 103 of 1977 is required to obtain municipal approved plans prior to the commencement of any building work on a property. Therefore, it stands to reason that every dwelling or house will have a set of municipal approved plans, right? Wrong. Unfortunately parties often only discover years later, when they want to make alterations to the property or when they want to sell the property, that there are no municipal approved plans for their property, and we are often faced with the question “who is now liable for the costs of obtaining these plans?”.

Most agreements of sale will include a voetstoots clause. This means that the purchaser accepts all defects which exist at the time of the sale, both visible (patent) and unseen (“hidden” or latent). The absence of approved plans in our law is considered a latent defect and will be governed by the voetstoots principle. In terms hereof a purchaser seeking to hold a seller liable for unapproved alterations or structures, or in the absence of approved plans, will have to show that the seller was aware that there were no approved plans, that the seller deliberately failed to disclose this information to the purchaser and that this was done with the intention to defraud the purchaser. This is a very difficult onus of proof to carry in a legal action.

A purchaser, when buying property may also only insist on approved plans if there is a clause to this effect in the agreement of sale. If no such clause exists in the agreement, the purchaser has no legal right to demand such plans from the seller. Given the limited recourse a purchaser has due to the voetstoots principle, a purchaser may wish to insist that the agreement of sale includes a clause that approved plans are provided prior to registration of the property.

The difficulties that could arise as a result of the absence of approved plans are that a municipality will refuse further renovations a purchaser had planned for, or at worst, that the illegal structure be demolished.

Furthermore, should the agreement of sale be subject to the purchaser obtaining a loan from a bank or other financial institution, the financial institution may in certain cases grant their loan subject to the purchaser providing 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 will not finalise their quote or grant the necessary consent to proceed with the registration of the bond and the sale could potentially fall through.