Don’t Land Up In Hot Water

The potential impact of unapproved building plans when it comes time to sell.

The ins and outs of subject to bond approval clauses

The National Building Regulations and Buildings Standards Act, 103 of 1977, dictates that no building may be erected without the necessary plans being submitted to and approved by the local authority.

While conforming to these regulations may seem complicated and unnecessary at first, it is important to note that their implementation is intended to ensure the enjoyment by all owners of the land which belongs to them, without it disrupting others.

The consequences for owners who alter or extend their property without the necessary approval can be quite severe. While there is the possibility of applying for approval retrospectively, should this be denied, the local authority is within their rights to order the building, or part thereof, to be demolished. Of course, this can be incredibly unpleasant, not to mention, costly for the owner.

It is, however, possible to remedy the situation through applying and obtaining the necessary council approval even once the construction has been completed. This will involve drawing up the building plans which will require the expertise of a qualified architect or draughtsman. These plans will then be submitted to council for approval. When it comes to a property transfer, unapproved building alterations can pose a significant problem for the seller.

Selling a property with unauthorized alterations may be seen as a misrepresentation. If these alterations are not disclosed, it can result in the seller being liable for claims. To prevent this the Estate Agent should address these alterations prior to the buyer signing the offer to purchase.

As previously mentioned, it is possible to apply for approval to the local authority, which would include the drawing up of plans to be submitted for consideration. The approval of these plans can also be included in the offer to purchase as a suspensive condition to protect a buyer. This means that should the requisite approval not be obtained, the offer to purchase will not constitute a valid contract of sale and the buyer will not be bound by the terms of the sale. He or she will then be free to make an offer and to purchase another property.

Of course, this retrospective application should not be considered the first option as it can delay property sales and can result in unnecessary costs. Plus, there is no guarantee that the plans will be accepted. Instead, it is recommended to have the necessary plans drawn up and the requisite approval received before moving ahead with any construction or alteration to a property.

Follow Snymans on Facebook for more legal advice, information and news about property.

4506

Recommended for you

Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

Private companies and the restriction on transferability of shares

14038

A requirement of the previous Companies Act of 1973 was that a private company must restrict the ‘right to transfer’ its shares, by way of the company’s articles of association, however, more recent legislation (Companies Act 71 of 2008) revised this. Now, a Memorandum of Incorporation (MOI) of a private company must restrict the transferability of any company’s ‘securities’ which includes both instruments such as shares as well as debt instruments such as debentures.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

What does the new Airbnb law mean for Cape Town property owners?

16382

Cape Town has approved new legislation that will have a significant impact on how short-term and holiday rentals will operate in the city, enabling property owners to financially benefit from the tourism industry.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Attorney Trust Accounts

18226

One of the fundamental components of being a legal practitioner is acting as a fiduciary of client funds which comes with a duty of care and significant responsibility.

Read More
Curatorship - what does it mean to be put under curatorship?
Legislative Guidelines

Is the deeds registries system ready for a change?

22714

The final step in the property transfer process is registration of the new title deeds in the Deeds Office. With the recent introduction of new legislation (the Electronic Deeds Registration System Act), we take a closer look at what this means for the registration process.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Court ruling: attorney declared negligent in dealing with client funds

22992

In the recently decided 2019 case of Jurgens and another v Volschenk, the Eastern Cape Division of the High Court made it clear that the utmost care must be taken by attorneys when handling trust money or dealing with a client’s finances, and that failing to do so will have severe consequences.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Don’t Land Up In Hot Water

The potential impact of unapproved building plans when it comes time to sell.

The ins and outs of subject to bond approval clauses

The National Building Regulations and Buildings Standards Act, 103 of 1977, dictates that no building may be erected without the necessary plans being submitted to and approved by the local authority.

While conforming to these regulations may seem complicated and unnecessary at first, it is important to note that their implementation is intended to ensure the enjoyment by all owners of the land which belongs to them, without it disrupting others.

The consequences for owners who alter or extend their property without the necessary approval can be quite severe. While there is the possibility of applying for approval retrospectively, should this be denied, the local authority is within their rights to order the building, or part thereof, to be demolished. Of course, this can be incredibly unpleasant, not to mention, costly for the owner.

It is, however, possible to remedy the situation through applying and obtaining the necessary council approval even once the construction has been completed. This will involve drawing up the building plans which will require the expertise of a qualified architect or draughtsman. These plans will then be submitted to council for approval. When it comes to a property transfer, unapproved building alterations can pose a significant problem for the seller.

Selling a property with unauthorized alterations may be seen as a misrepresentation. If these alterations are not disclosed, it can result in the seller being liable for claims. To prevent this the Estate Agent should address these alterations prior to the buyer signing the offer to purchase.

As previously mentioned, it is possible to apply for approval to the local authority, which would include the drawing up of plans to be submitted for consideration. The approval of these plans can also be included in the offer to purchase as a suspensive condition to protect a buyer. This means that should the requisite approval not be obtained, the offer to purchase will not constitute a valid contract of sale and the buyer will not be bound by the terms of the sale. He or she will then be free to make an offer and to purchase another property.

Of course, this retrospective application should not be considered the first option as it can delay property sales and can result in unnecessary costs. Plus, there is no guarantee that the plans will be accepted. Instead, it is recommended to have the necessary plans drawn up and the requisite approval received before moving ahead with any construction or alteration to a property.

Follow Snymans on Facebook for more legal advice, information and news about property.

4506