IS AN APPROVED MUNICIPAL BUILDING PLAN A REQUIREMENT FOR THE SALE AND TRANSFER OF MY PROPERTY?

IS AN APPROVED MUNICIPAL BUILDING PLAN A REQUIREMENT FOR THE SALE AND TRANSFER OF MY PROPERTY?

Picture this: you move into your dream property shortly after transfer, only to find that the garage (which houses your road bike, mountain bike and surfboards) was built without approved plans. Your neighbour is grumpy that the garage has not been lawfully constructed and the Municipality serves you with a notice to address the situation – nightmare!

The legal position around the requirement to have building plans approved by the local authority in the context of a property transaction has swung this way and that over the past few years and still causes a good deal of confusion between buyers, sellers and property practitioners. This article aims to clarify the law as it relates to the approval of building plans by the local authority both generally and insofar as property sales are concerned.

Firstly, the law relating to the construction or erection of any structure on immovable property is governed by the National Building Regulations and Building Standards Act and is quite clear in that: 

“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.”

So to begin with, local authority planning permission is a legal requirement before any building works, renovations or extensions can take place. You will need to check with your local municipality what its particular requirements are, and what “minor” works may be exempt from this requirement in your area. Structures built without municipal permission are immediately unlawful and the owner of a property with such structures upon it may be required to answer to the municipality. There are provisions for structures to be approved retrospectively on an “as built” basis, provided that there have not been transgressions of the zoning scheme (building lines, height etc.).

Where is gets more tricky is when we turn to the rights and obligations of sellers and purchasers in a property transaction – and our first word of advice here is buyer beware! A seller is not obliged to have fully approved municipal plans prior to selling and can indeed sell and transfer a property to you in the absence of same unless this is specifically recorded in a sale agreement.

Purchasers would therefore be well advised to check that municipal plans reflecting the current “as built” structures on the property have been submitted and approved – or at the very least that the structures are easily able to be retrospectively approved.

Despite the fact that sellers are not under an obligation to hand over approved plans, there are various reasons why having a full set of current plans will be to a seller’s advantage:

  • From a marketing point of view, prospective buyers will be reassured that all structures are lawfully constructed.
  • If the bank granting the buyer a mortgage bond decides it wants copies of plans as part of its approval process, delays in your transfer process can be avoided. 
  • The “Mandatory Disclosure Form” that you must attach to the mandate with your chosen estate agent and ultimately to the sale agreement specifically requires you to certify that the necessary consents, permissions and permits were obtained for any additions/improvements etc. Attaching the actual approvals and plans is the best way to cover you in the event of any dispute down the line.

We invite you to contact one of our expert property attorneys or conveyancers for any guidance or advice that you may require in the lead-up to your sale.

  • On June 1, 2024
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