Selling or buying a house is extremely stressful, and it helps to have all your ducks in a row before embarking on this journey, whether you are a buyer or a seller. One issue that rears its ugly head time and time again is the issue around building plans. Can you sell your house without approved plans?
Selling a house without approved plans in South Africa is not allowed. Any structure that does not have approved plans may be subject to a demolition order, a fine, or an expensive process of drawing up and submitting as-built drawings.
While some sellers get away with it, selling a house without approved plans is risky. Property transfers are usually subject to plan and on-site inspections. The building inspector will likely find discrepancies where the plans don’t match what is built on site. This will mean that the property transfer will be halted until the issue is resolved, either by a demolition order or approval of an as-built plan in some (lucky) cases. It is also possible that the sale can fall through at this stage.
The buyer can take legal action against you if you knowingly sell a house without approved plans, even after the sale and transfer have been concluded. In this case, the voetstoots clause will not protect you.
| “…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 …, the seller cannot hide behind the voetstoots clause.” – How “Voetstoets” Affects Building Approval and Plans, SANS10400.co.za |
The municipality is entitled to issue fines on any building work done without approved plans. In addition to the legal issues, buyers will also struggle to get finance; most banks will want to see approved plans and conduct an inspection before approving a home loan.
What are the consequences?
What might happen if you attempt to sell a house without approved plans?
- You might be liable to a fine if the changes or additions were made with your knowledge.
- The property transfer may be halted, and you may have to demolish the structures. In some cases, you’ll be allowed to have as-built drawings compiled by an architectural professional if the structures comply with the SANS10400 and the municipal bylaws.
- The sale of the property may fall through.
- If the sale goes through despite the above, the buyer can take legal action against you if they can prove you were aware that there were no approved plans for any additions, changes, or structures on the property.
- The buyer may not be able to get finance for the property.
What if you bought a house without approved plans?
Prevention is better than cure, so let’s talk bout how you can avoid this problem altogether.
Before putting in an offer:
- Ask the seller to see the approved plans.
- Make sure that they reflect what is on site.
- If you spot any discrepancies, document them and raise the issue with the seller in writing.
If you struggle to read plans, ask a friend who has some experience with architectural drawings to help you.
To check if plans are required for these discrepancies, read: When Can You Build Without Plans In South Africa? If you find that plans are needed, insist that the seller bring in an architectural professional to rectify the problem before signing an offer to purchase.
But, what if you already bought a house without approved plans?
If you bought a house without approved plans, you would have to either demolish the parts of, or structures that do not appear on approved or, in some cases, you’ll be allowed to have as-built drawings complied and submitted to reflect that property as it stands on site.
If you become aware of a discrepancy, immediately contact an architectural professional to help you resolve the problem. If the changes comply with the SANS10400 building regulations and the municipal bylaws, then you may be allowed to submit as-built drawings and put the issue to bed.
Can I take legal action against the seller if I bought a house without building plans?
It is important to note that you can take legal action against the seller for damages if you can prove that they were aware that some structures or features did not have approved plans. If you can prove this, then “voetstoots” will not cover them.
In some cases, you may need to accept that the seller didn’t know about the discrepancy and probably bought the house with the same issues. Unfortunately, if this is truly the case, you will have to rectify the problem at your own expense.