Get your house – and building plans – in order

Buying property is very exciting, but it can be a stressful experience for the parties if there is an issue with the building plans during the transfer process of the transaction, says Carol Reynolds, Pam Golding Properties area principal in Durban, Durban North, La Lucia and uMhlanga. “Now, more than ever, we seem to be experiencing ongoing problems with building plans while the sales transaction is in progress,” she says.

In terms of the National Building Regulations, it is incumbent upon homeowners to ensure that all buildings are on plan and that said plans have been approved by the local authority. Several years ago, the Municipality would put a block on the issuing of rates clearance certificates if plans were not correct. This would result in extensive delays in the transfer process, as transfer cannot proceed without rates clearance.

“Unfortunately,” says Reynolds, “we are finding the same situation has re-emerged. We have had several transfers being held up because plans have not been fully complied with, and the Municipality has therefore refused to issue rates clearance certificates.

“As it is the seller’s responsibility to ensure compliance with the Building Regulations, we advise all of our sellers to get their plans in order when they are contemplating placing their homes on the market. It is much easier to be prepared, than to be caught in the final stages of the transfer process and find you then have to quickly draft plans and submit these to the municipality at this late stage.”

She says one of the recent factors to keep in mind, is that energy regulations have changed. This means that buildings that would have been compliant several years ago may not be compliant in terms of today’s regulations. “For example, we have had several cases whereby sellers inherited properties and old outbuildings were not reflected on their plans. They are now being forced to submit plans for these existing outbuildings, only to find that they outbuildings do not comply with the new energy saving regulations. In some cases, sellers have had to add extra glazing, and so on, to ensure compliance. 

“We have also had legal advice on this matter, as we have done our best to minimize stress for all parties concerned, and the advice we have received is that sellers cannot rely on the voetstoots clause to protect them in the event that plans are not correct. It is a statutory requirement to ensure that all buildings are legal, and hence the voetstoots clause cannot be used to condone illegal building works. The purpose of the voestoots clause is simply to protect the seller from latent and patent defects in the property, given that the property is a second-hand property and hence, will not be in perfect condition. Plans are governed by law, and therefore need to be complied with.

“One solution that we find works best to assist the parties and facilitate the transfer process is for the attorneys to hold a retention until such time as plans have been approved. The attorneys then notify the Municipality that the seller has undertaken to submit plans, and that a portion of the proceeds will be withheld in trust until such time as the plans have been passed. The Municipality then issues the rates clearance certificate so that transfer can proceed.”

Reynolds says normally, body corporates and homeowners’ associations (HOAs) are very strict with plan compliance, which is positive from the perspective of ensuring overall compliance, but this too can frustrate the transfer process, as not only will the seller have to obtain municipal approval, but he/she will also be required to obtain consent from the HOA or body corporate.

“Ultimately, we are finding that our role as estate agents has extended beyond a sales and marketing function into the realm of offering advice and facilitating compliance with building regulations. It is a difficult predicament to be in, because issues over building plans can impact negatively on an otherwise happy transaction between buyer and seller. The best way to maintain positive relationships is for sellers to accept responsibility and perform their best endeavours to ensure compliance as expeditiously as possible, and for purchasers to allow the process to follow its course, without making additional demands on the seller,” says Reynolds.

Finally, and while on the topic of building regulations and planning, of interest is that this month (July 2015), SALGA (South African Local Government Association) introduced the Spatial Planning and Land Use Management Act (SPLUMA) of 2013, which aims to provide for the inclusive, developmental, equitable and efficient spatial planning at different spheres of government. While addressing the legacy of past spatial planning and regulatory imbalances, objectives also include promoting greater efficiency, consistency and uniformity in decision-making by authorities responsible for land development decisions.

  Comment on this Article

  Please login to post comments

Post to my facebook wall
Characters remaining

    Latest Property News
    • 17 Nov 2017
      FWJK has announced the launch of its latest residential brand, the Lil’ Apple, which will be launched simultaneously in two developments in Cape Town and Umhlanga totaling 600 apartments. The Lil’ Apple is set to be a brand of FWJK’s New York style apartments which will be rolled out nationally.
    • 17 Nov 2017
      It’s been a tumultuous year on many fronts, with socio-political uncertainty setting the tone for much of South Africa’s economic activity yet despite this and seemingly counter-intuitively, the residential property market has held up well.
    • 17 Nov 2017
      The EAAB (the Estate Agency Affairs Board) recently claimed that around 50,000 illegal estate agents could currently be operating illegally.
    • 16 Nov 2017
      Penthouses are synonymous with New York – characterised by high-rise living that is decidedly luxurious and spacious. While exclusivity comes at a price, you can still create a “penthouse” look and feel in your existing apartment or even the upstairs bedroom of a double storey house with some clever design changes and styling touches.
    • 16 Nov 2017
      The area has long been popular with kite surfers and, with escalating property prices in Cape Town itself, is increasingly in demand with home owners who work in town, but are looking to invest in more affordable properties.
    • 16 Nov 2017
      Cape Town’s popularity as a world-class tourist destination has resulted in a spike in the number of homes available for holiday lets and fuelled investor demand for sectional title units with short term rental potential.
    • 15 Nov 2017
      Sappi, one of South Africa’s oldest global companies and a leading global supplier of sustainable woodfibre products, has moved its global and regional headquarters to a new site on the corner of Oxford and 14th Avenue in Rosebank.
    • 15 Nov 2017
      There’s an old saying in real estate that you should seek to make a profit when you buy, not only when you sell – and a large part of succeeding at that endeavour is buying a home in an area with desirable features that will enhance the resale value of your property.
    Subscribe to the MyProperty Newsletter

    Last Name  
    Email Address  
    Email Frequency
    Share this Page

    For Sale Property
    Rental Property
    More Options
    Connect with us