One aspect of buying and selling residential property that isn’t given enough emphasis is building plans. While sellers do not legally have to provide approved building plans to a potential buyer, the National Building Regulations and Building Standards Act does mandate that all building plans, be that for construction, conversion, or alteration of a building, must be approved.
If a homeowner has indeed undertaken work that has changed the face of the property and cannot present approved plans, the owner is committing a statutory offence and may be required to demolish the changed part of the property and pay for repair costs. This can threaten a sale and have implications even after purchase if the buyer discovers this fact during the latent defective period.
Beyond that period, the buyer will be responsible for paying any non-compliance penalties and potentially have to demolish the illegal structure or renovation. If a seller has made adaptions without approval plans, agents are best advised to inform the seller to disclose this.
Case study Meerushini Govender, director in the property law department of Miller Bosman Le Roux highlights a case where a first-time homeowner purchased a property for her mother. She did not request building plans. When she came to sell the property, the new purchaser discovered that a previously renovated garage contravened the law. Although the judge, in this case, ruled for the seller who had claimed ignorance of building plan laws and depended on the Voetstoots clause, which protects sellers from liability for undisclosed defects that they can prove they were unaware of, it remains that without building plans, an illegal adaptation to a property is considered a latent defect.
Legal experts are clear that failing to disclose to a purchaser that there are no approved building plans may nullify any clause that protects the seller from liability. The purchaser is advised to include a clause in the sale agreement that states that delivery of the plans is necessary before the contract can be fully activated.
Agent comments Property Practitioners have a role to play in informing buyers about requesting building plans, and more so, says Laurence Van Blerck, sales agent at Pam Golding Properties – Bellville and Parow, because while they are aware of the need to carry out a physical inspection of the property before making an offer, “they also need to familiarise themselves with the regulatory aspects such as building plans and occupational certificates.
“Buyers often assume that properties for sale automatically have up-to-date building plans. Sellers really should be presenting building plans as it helps to build trust between the parties and may help to speed up the decision-making process. The absence of approved building plans may result in a buyer not submitting an offer. It is always better to disclose any issue with building plans upfront. Prevention is better than cure!” says Van Blerck.
Mercy Mpungose of eXp South Africa, Gauteng / Pretoria Northwest concurs with Van Blerk, adding that she recommends the seller provide all relevant building documents to potential buyers before the sale takes place. “It’s very dangerous to make changes without having the necessary authorisation from the municipality, and not just from a legal perspective. Construction can interfere with major features like gas pipes, water, and electrical systems, which puts lives at risk.
“As professional property practitioners, we should ask the seller questions about any renovations they may have undertaken. In the same way that they have to provide electrical and gas compliance certificates to secure the sale, I think building plans should also be a mandatory provision.”
Hayley Vann-Herbert, branch manager and property practitioner, Southern Suburbs, Jawitz Properties points out that unapproved plans can further lead to property devaluation and complicate future resale efforts. “While sellers may attempt to shield themselves from liability using the Voetstoots clause, which typically covers latent defects, there are exceptions.
“Requesting home plans before finalising a purchase is not just a prudent measure; it’s a safeguard against potential legal and financial pitfalls,” continues Vann-Herbert. “By ensuring transparency and compliance with regulations, buyers can proceed with confidence.”
Vann-Herbert’s property practitioner, Jeremy Craig, says that when a seller does not have approved plans, “I disclose it on Annexure A. I want my transactions to be as smooth as possible. Most of the buyers I deal with want to include plans in the agreement of sale.”
Jawitz Properties’ Shaun Long (Fourways) and Ashe Thaler (Lonehill) agree with Long, pointing out that “Plans are also tools” and Thaler: “Plans empower buyers to make informed decisions while ensuring transparency.”