Are Having Approved Building Plans a Legal Requirement for Selling?

Are Having Approved Plans a Legal Requirement for Selling your Home?

According to Section 4(1) of the National Building Regulations and Building Standards Amendment Act, 103 of 1977, it is a legal requirement in South Africa to obtain planning permission in writing prior to building, renovating or extending a home, so as to ensure that the building work does not affect the integrity of the home structure.

Section 4(1): No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.

Any alterations or improvements that change the structure of the home, as well as the addition of/alteration to minor structures on the property, require building plans or permissions from the local authority. Proposed plans, council-specific drawings and supporting documents must be submitted to the relevant municipality’s town planning department by a competent professional (architect, draughtsman or engineer) registered with the Engineering Professions Act, the Architectural Professions Act, or the Natural Scientific Professions Act, and approved before building of any structure may commence. It is this local authority that governs all building and construction work and grants or refuses to grant approval of structural changes on all properties in terms of its own building regulation by-laws, zoning regulations, and the National Building Regulations.

Minor Building Work Exempted:

Unlike structural changes and additions, minor building work does not always require a building plan. These include structures like children’s playhouses, aviaries and chicken coups, tool sheds, greenhouses or pergolas.  As stated in Section 13(1) of the National Building Regulations and Building Standards Amendment Act, 103 of 1977, the local municipality’s building control officer may exempt the owner from the obligation to submit a plan to the local authority for approval of the erection of a structure deemed “minor building work”. However, minor building work still requires the building control officer to grant authorisation before the building of any structure may commence and all building work must adhere to the local building regulations (the conditions and directions specified in such authorisation). These building regulations may differ from one local municipality to another, as each has their own building regulation by-laws, and can be found on the municipality’s website or with the help of a building professional.

The Voetstoots Clause & Seller Responsibility towards Illegally-Erected Structures:

In South African law, the Voetstoots Clause is a standard provision in the sales agreement of immovable property designed to protect the seller against claims for damages discovered after the transaction has taken place.  Essentially, the clause stipulates that the buyer purchases the property from the seller in its existing condition, including any patent (clearly visible) or latent (not easily discoverable/visible) defects during reasonable inspection of the property.

Regardless of whether defects are patent or latent, the seller is required by law to disclose any defects they’re aware of in the Mandatory Disclosure Form issued by the Property Practitioners Regulatory Authority as part of the Offer to Purchase, when selling through a Property Practitioner (Estate Agent), verifying that those items listed constitute a full and honest disclosure. 

According to Sans10400.co.za, South African law views any property with buildings erected without municipal approval as a property with a latent defect. The seller will not automatically attract liability if he sells the property with unauthorised building works, unless he himself organised and ordered the renovations/extensions without first obtaining the necessary planning permissions, and deliberately failed to disclose this information to the purchaser.

If the purchaser can prove that the seller deliberately concealed the defect, the voetstoots clause cannot be used to protect the seller against claims for damages and such damages will be for the seller’s account.

It then goes without saying that aspirant buyers should ensure they request and receive updated and approved building plans that match the house as it stands before signing an Offer to Purchase.

The Consequences and Risk of Non-Compliance for the Seller:

If a seller fails to provide prospective buyers with approved and up-to-date building plans, he risks eliminating homeloan-dependant buyers from the pool of prospective buyers altogether – the vast majority of qualified purchasers in the current economic climate.

Most financial institutions are unwilling to grant bonds without approved and up-to-date building plans. If the building plans lodged with the local municipality do not match the house as it currently stands, these shortfalls and non-compliance risk costly and unnecessary delays in the transfer of the property.

Eliminating buyers is especially dangerous in the current buyer’s market, where housing supply is at an all-time high and qualified, serious buyers are few and far between. Inflationary pressure and record high interest rates have had a significant impact on the cost of servicing mortgage debt for existing property owners, pushing some homeowners well beyond their means and forcing them to downscale or enter the rental market. Many aspirant homeowners have been forced to remain as tenants, as the cost of purchasing property and servicing bond instalments continues to climb. The rising cost of living, consumers’ poor credit profiles post-pandemic, staggering unemployment numbers, and the compounding affect that loadshedding has had on economic activity serve to further dampen first-time homebuyers’ prospects. Not to mention, the rapid rise in emigration or semigration to SA’s coastal areas has saturated the property market with mid- to high-value properties. These factors, among others, have contributed to a market saturated with sales properties but sorely lacking qualified buyers.

Are Banks Responsible for Ensuring Building Plans are Accurate and Up-to-Date?

The bank does not have any obligation or responsibility to review or ensure that the building plans are correct – this responsibility lies solely with the homeowner before renovations or changes are made to the building structure. Most banks request approved building plans to protect their mortgage loan over the property and to ascertain whether any illegal structure exists that may impact the security of their investment.

This has serious implications for the new (and often unsuspecting) homeowner. The responsibility to ensure that the building plans are up-to-date and approved by the local authority passes to the purchaser on the sale of the property. If alterations to the structure of the property have been carried out without municipal approval and the property is then sold, the municipality may refuse to grant any new building permissions the purchaser may have planned, or may fine the new homeowner for noncompliance of existing illegal structures.  The municipality may go so far as to order the new homeowner to demolish the illegally-erected structures or additions.  

In conclusion, the responsibility to comply and ensure plans are submitted and approved before renovations or alternations commence is the homeowner’s responsibility.

This responsibility (and associated problems) passes to the purchaser on the sale of the property. Therefore, purchasers should request and scrupulously inspect the building plans before signing the Offer to Purchase, and ensure that all current structures are reflected.