The Implications of Selling a House
Without Approved Plans

Home-floor-plans-Additions

If you are selling your house, and don’t have approved plans, you could find yourself in a lot of trouble. And if you are buying a house, and don’t ask whether the seller has approved plans, you might end up inheriting some very expensive problems.

Legal Implications of Selling a House Without Approved Plans

Since the law requires everybody to have plans drawn up in a particular manner, and approved by the local authority in their area, it stands to reason that every house will have plans. But this is not always the case, and a lack of approved building plans is clearly a major problem for many people buying and selling houses and other buildings in all parts of South Africa.

Hardly a day goes by that we don’t get asked questions on this website that relate to issues concerning plans. Sometimes people only discover that there are no plans years after they have bought a property, either because they eventually want to do alterations, or because they want to sell. Other times people find at the point of sale that a house they are buying does not have plans, and they want to know whose responsibility it is to have plans drawn up retrospectively (“as built”).

The reality is that if alterations and additions have been carried out on a property without municipal (local authority) approval and the property is then sold, it can become quite a complex legal matter.

An article by STBB Smith Tabata Buchanan Boyes that we have referenced gives some clarity about the implications of selling a house without approved plans.

Are Building Plans and Building Approval Always
Required for Houses?

As STBB explain, the National Building Regulations and Building Standards Act  specifies the need for building plans and approval. More specifically, it is the local authority that governs exactly what can be done in terms of its zoning regulations and the NBR. So it is they that give approval (or deny it) for all building work and renovations on ALL properties. “Minor building work”  is viewed differently and most municipalities will be more lenient when it comes to minor building work.

The Act states that the municipality, at its own discretion, may be approached for a relaxation of the necessity to obtain approval of plans. But note that this must be asked for and approval received in writing. Read our page on minor building work  for more information.

How the Issue of “Voetstoets” Affects
Building Approval and Plans

The agreement made between two parties when a property is sold will in most instances include a voetstoets clause. Essentially this clause indicates that the purchaser accepts the risk relating to defects existing at the time of the sale, patent or latent (but not visible). The exceptions to this clause are instances where the seller deliberately and fraudulently conceals latent defects from the purchaser, that he or she was aware of at the time – in which case the seller will remain liable for these defects. But of course the purchaser will have to provide evidence that the seller knew what was wrong.

Note that the position is somewhat altered if the Consumer Protection Act applies to the agreement between the parties, e.g. where the seller is a developer.

Our law takes into account that any property with buildings erected without municipal approval is a property with a latent defect. The voetstoets clause will normally cover latent defects and a seller will not automatically attract liability if he sells a property with unauthorised building works. But if the seller knows that there are no plans and he organized and did the renovations himself, and he deliberately does not disclose this fact (with the intention to defraud the purchaser), the seller cannot hide behind the voetstoets clause.

Problems That Can Arise

The lack of approved plans could lead a municipality to refuse to allow any further renovations a purchaser might have had planned. In the worst case scenario the municipality could order that the illegally erected structure or additions be demolished.
A (latent or patent) defect that is of a significant nature, and affects the use and enjoyment of the property, does allow the purchaser certain remedies. The most far-reaching of these is cancellation of the agreement, which he is entitled to do, if the purchaser can prove that the defect is so serious that he would not have bought the property had he known this. Other courses of action include the reduction in purchase price or a claim for damages, depending on the seriousness of the defect and the specific circumstances involved.

In many cases an offer to purchase a house will be dependent on the purchaser obtaining home-loan finance from a bank or other institution. And in most instances, (though not all), the financial institution will want to see up-to-date approved plans before finance will be granted. If the plans lodged with council do not match the house as it stands, then the sale could fall through and set the seller’s plans back for quite a length of time, together with additional costs to rectify the problem.

The local authority is also entitled to levy fines on any “illegal” building work that was done without approval.

There is more on the “Voetstoets Clause” and the CPA (Consumer Protection Act) here: the-consumer-protection-act/the-cpa-the-voetstoets-clause

  95 Responses to “House Without Approved Plans”

Comments (95)
  1. I have just asked my local authority for the building plans for my home, and apparently they are dated 1930 and have never been changed since then. The person I spoke said that this could cause me problems. I have not changed the structure of the house since I moved in, except for building an outdoor braai. But I’m sure it has been changed since it was built, clearly without approval. I don’t actually want to make any alterations right now. Is it true that the local authority can fine me or charge me with something?
    Also, I have never heard that it was required upon buying a house that one obtain the plans. I bought the house in 2001.

    • Technically they could fine you, but you’ve got a good argument in terms of changes made a long time ago. There is nothing that states you have to obtain plans when buying a house, though it’s a good idea. In fact we believe that it should be mandatory for estate agents to provide these when they are selling.

      • Hi Penny,

        I’m in a similar situation but the difference we renovated the main bathroom and kitchen which could be seen as “Minor Building Work” from what I understand.

        We sold the property a year ago but a while back the new owners finally received a plan from CoJ and apparently plans were last updated 1985 and it seems the building was altered extensively since then.

        When we bought the property we have tried numerous times to acquire the plans from the Estate Agent and CoJ but with no success. We have since relocated overseas so it is difficult managing this at the moment.

        Do you have any suggestions what to do?

  2. I would like to know what can happen to a person how do extentions to their houses with out plans or notify planning dept
    In Centurion it happen to be the case .the two houses 1 in BLUE JAY 36 – and 1 in KRAANVOEL 45 ROOIHUISKRAAL these 2 house belong to one owner and he is renting out the bachelors plus minus 9 units and make some good money. As far as we know their is no plans for the extentions and modifications to these houses
    I would like the planning dept to investigate and do something about it
    I do not have a nr and do not know who to contact regarding this matter.

  3. Where could I find plans for my house?

    Is there a repository where I could go to?

  4. Hi, I looked up my 1960’s building plans (home in Blairgowrie) to check if the out-building was on plan.
    I discovered the main house was not built strictly to plan. The tile roof structure differs. It looks totally sound. It wasn’t altered and the bank financed the house. Do I have a problem ?
    Also, regards the outbuilding. It was a garage-domestic living space.
    It has sewage pipe and water and was used for accommodation.
    I’ve knocked out (interior) walls, put in interior walls and windows without plans. I also used unregistered electricians and plumbers.
    Do you have suggestions for me on that…? Do I have to get plans and pay rates for an additional dwelling ?
    Thanks,
    TJ

    • TJ it’s not clear whether it is only the tiles on the roof or the structure itself that is different. However, in the past – and sometimes now – banks don’t bother with plans when they mortgage houses. You might though have a problem if you decide to sell, because more and more are now calling for plans as well as NHBRC certificates (which won’t affect you). Knocking out internal walls and putting in windows shouldn’t be a problem as long as the extent of the house wasn’t altered and the walls weren’t load bearing. It’s not clear what you used unregistered electricians and plumbers for; generally as long as the basic system was signed off by professionals you should be alright… and of course as long as it has been done properly. Your options are to continue as is – the fact that the house is so old might play out in your favour; or to have as-built plans drawn up. The latter might be your only choice if you decide to sell.

  5. a so-called builder is extending 3-rooms. he put on the roof within +-5-hours. the roof was very skew and not applied as it was requested or discussed between the 2-parties. he spoiled the image of the house and also damaged the building material in the way how he constructed the 3-rooms and the roof

    what can be done in this case?

    • Not much unless you sue him – or send a lawyer’s letter making demands – e.g. pay for damage. The secret is to ensure that before you hire someone to do building work for you to make sure they are reputable and know what they are doing.

  6. Kindly please help. We bought a house 2 years ago and now want to sell. The previous owner says he thinks the plans to extensions were passed but doesn’t remember through who or what. We went to council and the lapa is built over a council drain and there are no approved plans for the lapa or the extensions to the house. Please could you tell me legally what we can do about this and how can we rectify this?

  7. Hi,

    If i want to change my roof from a flat,IBR covering to concrete tiles Tuscan style do I need to submit plans?

    • Yes you must because the roof trusses will probably have to be changed due to extra weight. You can only change the roof covering if it is the same as on on the original plans – i.e. you upgrade.

  8. Can you rent an office space you have built on your property that has no plans out….is this legal….surely SARS will question this for the company that is renting the office that technically and legally does not exist as it has been built without plans???

    • If they don’t have plans, chances are they haven’t declared the building to SARS either. You can report it to SARS and to the local authority.

  9. can a purchaser demand that the seller have new plans drawn up if they cannot find the original plans at council, before registration takes place ?

    • Yes – but there is nothing that can force the seller to comply. It’s a matter of negotiation… One of the biggest problems is local authorities “losing” plans.

  10. How much does “as build” plans cost to be drawn up?

    • Nadia, “As Built” is just a term used when you submit plans for a building that is already built. The cost of the plans will be the same. There might be a penalty from the coucil for “Late Submission” of plans.

  11. How convinient is “as built” plan approved and what average cost? (multiple costs)

    • Hi Steven, What do you mean “as built”? In the housing industry “as built” plans are plans that are submitted to council if there were no approved plans for a building lodged with them. Or if the owner or builder deviated from the plans that were approved and a new set of rider “as built” plans have to be submitted. This happens a lot with people doing renovations without submitting plans and later when they want to sell the buyer, if he has any sense, should ask to see the plans and if the house and layout are not the same as the approved plans then new “as built” plans must be submitted and approved.

  12. My neighbour erected a sunroom (size of a bedroom) on an existing slab of concrete that was initially built (open) as a braai area.
    I was never asked if it would encroach on my privacy next door. Do I as a neighbour have no say in building extensions next to my house?

    • Only if the extension is over the building line or in contravention of the National Building Regulations. I would contact the planning department of your local authority and ask them to investigate.

    • Only if the extension is over the building line or in contravention of the National Building Regulations. I would contact the planning department of your local authority and ask them to investigate.

  13. I recently bought a property from a insolvent estate with a incomplete building at the back. I only recently found out that there are no plans drawn up for this building. What is the best way to solve this?

    Thank you

  14. I would like to know how I can report my neighbour in Centurion for making alterations to his house without approval. I would like to report it anonymously. Could you tell me how to go about it? Thanks.

    • Contact the planning department of your local authority – Tshwane Municipality. Don’t give your name – or tell them you want to remain anonymous.

  15. if you change your roof pier angle do you need plans do you need plans for an awning. and do you need plans for building another room onto an out building

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