Are the Property Plans Correct?

Private Property South Africa
Lea Jacobs

Although it may not be a legal requirement for sellers to provide a copy of the house plans, it is highly recommended that buyers insert a clause into the sales contract stating that as far as the seller is aware, the property plans are up to date and in order with the relevant authorities.

One would think that it would be compulsory for the seller to supply a set of municipal-approved plans to the buyer when a property changes hands, but according to a report that appeared on the Property Portfolio investments website, this is not the case.

While it may not seem like a big deal, problems can occur during the transfer process if the purchaser becomes aware that the bricks and mortar do not match up with what is officially on paper. According to attorneys Meumann White, this normally results in lengthy delays in the finalisation of the transfer.

Whether we want to believe it or not, there's a general sense of lawlessness in South Africa and there are people from all walks of life who seem to delight in flouting the law at every opportunity. Unfortunately, this also applies to property. People erect unapproved structures all the time, and while they may not be caught at the time of the build, it is going to become apparent that something is wrong when the property is sold. The buyer may not mind that a seller has added an additional garage or granny flat without following the correct procedures or without official approval, but some local municipalities do and will not issue a rates clearance certificate until the plans have been amended.

Even when the seller and previous owners have followed all the correct procedures and have sought and received approval from local authorities, there have been cases where the plans have been misplaced by the relevant municipalities. In cases such as these, a new set of plans often has to be lodged.

Meumann White states, “For a long time, the seller was regarded as being protected by the provisions of the voetstoots clause, and if the seller was not aware of the lack of plans and the purchaser did not request copies, the purchaser was obliged to take transfer of the property as is. This was the situation up until three years ago, when it was held by the Court in an Eastern Cape matter that it was an implied term of all sales of immovable property that plans for the buildings were properly approved. This judgment was subsequently overturned by the Supreme Court of Appeal, which meant that the protection afforded to the seller by the voetstoots clause came into effect again."

It is highly recommended that buyers insist on a clause in the sales agreement in which the seller warrants that municipal plans are in order. "If it is found at any stage after signature of the sale agreement that there are no/incomplete plans, then the seller will be bound to the purchaser by such a warranty and will have to arrange for the drafting and approval of these plans prior to registration of transfer."

Although municipal plans are required in terms of the National Building Regulation Act, in regard to the contractual relationship between a seller and a purchaser, the purchaser can only insist on properly approved plans if there is a clause to that effect in the sale agreement. "It is our experience that most purchasers expect that the municipal plans are in order."

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