The Implications of Selling a House Without Approved Plans
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 approved 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 explains, 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 the 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 the 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 the 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
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”.
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!
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.
You should be able to obtain the title deeds. The plan will then be drawn from these.
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.
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.
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.
Good morning, is it legal to cancel an OTP if the seller does not have house plans?
Sounds like you were being bullied. I would report the agent to the Board of Estate Agents.
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.
No.
If you have those subject clauses you should be okay.
This is quite a common problem and the only solution I can think of is to have “as built” plans drawn up.
There must be a local authority for the area? Only they would know.
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.
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?
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?
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?
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?
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?
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).
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?
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.
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?
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