Approved building plans are and should be regarded as a critical component of property transactions in South Africa. Do you know why? Are they merely administrative documents required for conveyancing, or can their absence lead to delays, financial consequences, or even the “collapse” of a transaction? These questions often only arise once a sale is already underway, which is why a basic understanding of approved building plans is essential for both buyers and sellers.

Legal Requirement for Approved Building Plans

The law dictates that, most building activities, including new constructions, alterations, and changes in the use of existing buildings, require approved building plans. These plans must be submitted to the local authority for approval before construction begins. The process involves verifying compliance with zoning regulations, development parameters, and other municipal requirements. 

Role of Approved Building Plans in Property Transactions
Approved building plans are not merely administrative documents, they are essential for ensuring that all structures on a property comply with municipal requirements and could protect both buyers and sellers from potential disputes and liabilities.

Obligation to Provide Approved Building Plans

Sellers are generally expected to warrant that all buildings and structures on the property have approved building plans. Sellers might (if explicitly stated in the sale agreement) even be required to provide copies of approved building plans prior to registration of transfer.  If it is discovered that any building plans are outstanding, the seller must undertake to have them drawn and approved at their cost before the transfer date (unless otherwise agreed to between the parties).

A buyer cannot assume that a property has approved building plans; rather, they should conduct thorough due diligence to verify the status of building plans, zoning, and town planning requirements.

This dual approach ensures that both parties mitigate risks associated with unapproved structures. 

Consequences of the Absence of Approved Building Plans

The absence of approved building plans can lead to significant complications for both buyers and sellers. It may result in, but are not limited to, legal disputes, breach of contract, statutory non-compliance, significant financial consequences, delays in the transfer process, fines, or even demolition orders from the municipality. 

Its absence has been recognised as a latent defect in case law, as it interferes with the ordinary use of the property and may require costly rectification to comply with municipal regulations.

Voetstoots Clause & Consumer Protection Act

The ‘voetstoots’ clause generally protects sellers from liability for latent defects unless the buyer can prove that the seller knew of the defect and deliberately concealed it with the intention to defraud. A latent defect is defined as one that is not visible or discoverable upon reasonable inspection and substantially impairs the utility or effectiveness of the property.

If a seller unintentionally fails to disclose a defect, they can use the legal precedent set in Haviside v Heydricks and Another to contend that they are not liable, provided they were bona fide unaware of the latent defect when the sale occurred.

The Consumer Protection Act 68 of 2008 (CPA), however limits the voetstoots clause’s application in consumer transactions, imposing stricter disclosure requirements. Under the CPA, sellers are unable to rely on ‘voetstoots’ clauses to exclude liability for latent defects if they were aware of the defects and failed to disclose them. The CPA requires sellers to disclose all defects explicitly in the sale agreement, and the buyer must expressly agree to accept the property in its disclosed condition. If the seller intentionally conceals defects, the ‘voetstoots’ clause will not protect them, as the CPA prohibits contracting out of its implied warranties.

Conclusion

Approved building plans are a fundamental aspect of property transactions in South Africa, and compliance therefore protects both buyers and sellers from potential disputes and liabilities. Sellers are generally expected to warrant that all buildings and structures on the property have approved building plans, while buyers should conduct thorough due diligence to verify compliance. The absence of such plans can lead to legal and financial complications, emphasizing the importance of addressing this issue early in the transaction process.

At Millers Inc, our conveyancing department understands the complexities and regulatory considerations that can arise in property transactions, particularly where issues such as approved building plans, latent defects, and contractual obligations are involved. Our experienced professionals are committed to guiding clients through every stage of the conveyancing process with clarity, diligence, and efficiency, ensuring that both buyers and sellers are accurately advised and protected. Should you require assistance with a property transfer or advice regarding building plan compliance, our team at Millers Inc. is ready to assist.

Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).