Diesel Rebates & SARS (pg 11)
October 8, 2018
Leading Change and making it Stick! (pg 13)
October 8, 2018

Wanting to sell your home? Make sure your building plans (pg 12)

Wanting to sell your home? Make sure your building plans.

>> Mike Francis (Bax Kaplan Russell Incorporated)

If you were to sell your home and you have made alterations and extensions to the home without approved building plans, you may find yourself in a very tricky situation.

The National Building Regulations and the Building Standards Act of 1977 obliges every owner to obtain municipal approved plans before the commencement of any building works on a property. Every owner should therefore obtain the approval of the municipality to build any new structure or to alter an existing structure on their property. The local authority (in our case Buffalo City Metro Municipality) is the lawful custodian of those plans. There is no legal obligation on an owner to be in possession of approved building plans which should be retained by the relevant municipality.

There have been conflicting High Court decisions regarding the obligation of a seller to provide a purchaser with building plans. A Gauteng court held in 2007 that it was an implied term of all sales of land that plans for improvements on the land were properly approved. This judgment was subsequently overturned by the Supreme Court of Appeal which has ruled that if a Seller is not aware that there are no approved plans for improvements on the property and the sale contains a Voetstoots clause, then the lack of plans is a latent defect in respect of which the Purchaser is protected by the provisions of the Voetstoots clause. If the Seller is aware of the lack of plans and fails to disclose this to the Purchaser this is a fraudulent misrepresentation and the Seller will not have the protection of the Voetstoots clause. The Purchaser in these circumstances may be entitled to resile from the sale.

It has become common practice for Purchasers to insist on a warranty being inserted in the Sale Agreement which provides that the Seller warrants that there are approved plans. There is some support for the Purchaser going further and making the provision of approved plans a suspensive condition of the sale. This would mean that if the Seller was not able to produce plans the sale would lapse. If a warranty is included and it is found that there are no plans, the Seller will be bound by such warranty and would have to produce “as built” plans at his or her cost.

If you are a Seller you should know whether there is a clause in the Deed of Sale obliging you to have approved plans then make sure that the plans are available and approved by the local authority.