Comply or demolish

Private Property South Africa
Anna-Marie Smith

When building or moving into a new home, occupational certificates are as necessary as clearance certificates. WHAT certificates, you ask?

Most simply, city councils issue occupancy certificates to certify that buildings have been completed in accordance with approved building plans and all legal requirements, including clearance certificates. Court orders to demolish non-compliant structures, although worst case scenarios, can happen.

The safety of the general public is ensured through the issuing of certificates to confirm compliance with building legislation and standards. Says Spaarbou Construction owner and developer Kobus van der Linde: “No clearance – no occupation.” This adherence to quality standards can be seen in his recent development, Bateleur Park in Ellisras.

Chain of events

These two documents form part of an essential chain of events, because occupational certificates cannot be issued without clearance certificates.

This process entails a range of compliance issues, from the earliest stages of land ownership, through to re- zonings, and certification received from registered and approved practises, including the National Home Builders Registration Council.

Occupational certificates are required for free-hold properties, including those which have been altered or extended. These are issued on application to local municipalities, by owners and sellers, who are assisted by relevant professionals and construction companies.

In the case of sectional title or private estate ownership, developers and builders obtain clearance directly from councils and certificates, which are then issued through relevant body corporates and home owners’ associations.

More reason for certification

This document is essential for more reasons than ensuring the safety of building occupants, be they owners, tenants or the general public, says Marlize Swart of Smith Tabata Buchanan Boyes.

Banks only authorise mortgage bonds when confirmation is available that financial investments are legally and factually sound.

Insurance coverage cannot take place for damage to a building, or to a member of the public, or house occupants, regardless of whether a fault lies with a builder, electrician, engineer or architect.

Municipalities are unable to legally turn on water and electricity because deposits cannot be paid without proof of occupational certificates

Financial losses can be incurred as the result of delayed occupation, when either or both building clearance or occupation certificates, are not in hand.

Case in point

The Supreme Court of Appeal in Grahamstown ordered the demolition of a primary residence in the case of Lester versus the Ndlambe Municipality. The court deemed this luxury dwelling an illegally built structure because no approved building plans were in place, nor was an occupancy certificate procured.

Construction of this building exceeded the maximum admissible building height, measured from the ground level of the plot to the top of the parapet. The Court stated: “one is acutely aware of the financial calamity, inconvenience and disruption which the demolition of what is plainly and expansive, luxurious dwelling, and a primary residence to boot, would cause Lester. But the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations”.

Swart says owners need to be vigilant, although a certain degree of duty lies with professionals, such as architects, engineers or electricians, who have first- hand knowledge of legal compliance.

Ultimately, the responsibility for obtaining an occupancy certificate lies with the owner of a property.

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