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 The importance of obtaining approved building plans from the seller

 

 The National Building Regulations and Building Standards Act (no 103 of 1977) stipulates that no person may erect, alter, add to, or convert any building without the prior approval of the Local Authority. Building without approval, can have disastrous consequences.

If you are buying a commercial property, it is very important that you request that the seller produce the approved municipal building plans for the property to ensure that the structure of the property is the same as what is shown on the plans. If you find that the two don’t in fact correspond, then alarm bells should start ringing.

If the seller has chosen to build without having the plans approved, this is illegal and becomes your problem as the new owner. The reason for this is, in terms of the Consumer Protection Act (CPA), if the seller is engaged in a once-off transaction (i.e. the sale is not part of his usual day-to-day business) the Voetstoots Clause still applies, subject to any other relevant clauses agreed to in the Deed of Sale.

This means that the buyer is in effect buying the property as it is, regardless of whether it conforms to the plans or not.

Should a building inspector ask to see the plans, he can obtain a court order requiring that you turn the building back to its original state at your own expense, and you would be liable for legal costs as well. In serious cases, you could be fined or sent to prison.

Also, if you ever want to sell the building, the buyer may insist on seeing the approved plans for the building. The buyer can then cancel the sale agreement if the plans do not match the physical structure.

In the case where you have bought the property, but find out later that it does not comply with the approved plans, it is essential that you bring in an architect or draftsperson to draft the plans of the building as it is now and then to submit the “as built” plans to the municipality for approval.

Unfortunately you could still be held liable for a fine imposed by the municipality for owning a dwelling that does not comply with the approved building plans or may have to demolish parts of the dwelling that are not approved in order to ensure compliance.

One way of protecting yourself is for the Sales Agreement to contain a clause in terms of which the Seller declares that accurate approved Municipal Plans are properly in place. If it is found after signing the Sale Agreement that there are no or incomplete plans, then the Seller will have to arrange for the drafting and approval of these plans before the registration of transfer.


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