Legislation
The National Building Regulations and Building Standards Act, 1977 dictates prescribed building standards and consistency in the erection of buildings in the areas of jurisdiction of local authorities It also stipulates that all building modifications and alterations require approval before being executed.
The Property Practitioners Act, 2019 makes provisions for protection of the consumer when they are enlisting the services of a property practitioner when selling or purchasing immoveable property. Section 67 of the Act alludes to the duties of the property practitioner with respect to the approved building plans.
There is some confusion in the industry over whether approved building plans a required for a property sale to go through. Although they are not required, it’s important for sellers to understand their responsibilities extend beyond merely accepting the offer to buy and leaving the property.
Approved Plans: Not a mandatory requirement
Approved building plans are not a mandatory requirement for a property transfer to be executed. However, there are many instances where they will become a condition of sale (e.g. by request, from the purchaser and/or their financial institution or building insurance company).
Even when the plans have not been requested by a buyer, if a seller knows there are no approved building plans, it's essential to disclose this to the buyer. Lacking statutory approval is considered a latent (hidden) defect, and if a seller was aware of a latent defect and did not disclose it, the buyer may have a right to recourse.
Once the buyer is aware of the status of the building plans (whether they are approved, or missing, or not as per the current building), it is up to the buyer to decide if they want to proceed with the sale with the property “as is”, or request for approved plans as a condition of sale.
Approved Plans as a condition of sale
Although it is not legally required that building plans be recent and hand delivered at the time of transfer, there are two ways that approved plans might become a condition of sale:
1. The buyer requests approved plans as a condition of sale in the Offer to Purchase as part of their offer. It is up to the seller to accept or negotiate on this condition.
2. The buyer’s bank or insurance provider requests approved plans as part of the home loan approval, particularly in cases where the property has undergone additions or renovations. This makes it a suspensive condition of the offer to purchase, even if it was not in the original agreement.
Who pays for the drafting of approved plans?
In the absence of approved plans or additions required to plans, there’s often a dispute over which party must pay for it (i.e. an architect to do the drafting, plus submission costs for approval). Depending on what is required, this could be anywhere from R15,000 up to R35,000, or more (assuming there are no further alterations to the building required), so the base cost can be significant.
In the scenario where the buyer requests the approved plans as part of the Offer to Purchase, the onus is typically on the seller to provide them, or pay for them in the event of them being found missing. However, it’s crucial for the wording in the agreement to be unambiguous with respect to this, to avoid disputes down the line. In the event where the seller knows there are no plans, and the buyer requests them, there can be a negotiation between the parties around who pays – this could be the seller in full, or the buyer and seller may agree to split costs 50/50. This should form part of the Sale Agreement.
Where a buyer accepts the absence of plans and signs the Sale Agreement, they have already indicated their acceptance of the property with this latent defect included. Should their bank or insurer now require plans as a condition of sale, unfortunately for the buyer, the onus is now on the purchaser to pay for the plans to be drafted or they could potentially be found in breach of contract.
Involvement of a Property Practitioner
Property practitioners are required by law to protect the interests of both the buyer and the seller in a property transfer, and ensure that negotiations are done fairly and comprehensively. When buying or selling property, a property practitioner can also assist parties to ensure the sale is completed within the bounds of the applicable legislation.
When it comes to disclosure of defects, including presence of approved building plans, the property practitioner will ensure the agreement is drafted correctly. By law, they are required to present the buyer with a property disclosure form, stating to the best of the seller’s knowledge, the current condition of the property. This form always indicates whether or not the seller is aware of the property having approved plans or not.
How to get copies of your approved plans
To get copies of approved plans, you’ll need to apply at your Local Authority. Application forms can usually be downloaded in advance, and can even be submitted by email in some municipalities. You’ll need to provide an ID and latest rates bill, plus a letter of consent if you’re not the property owner. Fees and timelines differ for each municipality, but your estate agent or conveyancing attorney can also sometimes assist.
One would assume that every home or building will have a set of plans, but this isn’t always the case - and occasionally people don’t find out there weren’t any plans for their home until years later, when they wish to sell their home or make changes to it. In these instances unnecessary delays can be avoided by hiring an architect early on in the process to handle the drafting of updated plans and presenting them to council for approval.
Work with an experienced conveyancer
If you are selling your property with the assistance of Aucamp Inc, we will do everything we can to get your approved plans as quickly as possible, as part of the service offered.
Aucamp Incorporated is an experienced law firm with over 35 years’ experience in property transfers and mortgage bonds in South Africa. For expert advice, get in touch with one of our experienced attorneys