Neglecting to ensure compliance with building regulations when selling your home can lead to complications
A recent ruling by the Western Cape’s High Court underscores the significance of verifying that the enhancements made to your property align with both national and local building regulations. Failure to do so may result in substantial financial consequences.
In the legal case at hand (Allen v Scheibert (14136/2010) [2015] ZAWCHC 37), the property seller provided a guarantee confirming that alterations to the buildings had received approval from the local authority. However, post-sale, the buyer discovered that a second dwelling on the property lacked approval, rendering it illegal. The buyer pursued legal action, and the court ruled in her favor, awarding her over R 217,000.
ARCHITECTURAL INSIGHT
Nick Brits, a principal at Gauteng’s Evolve Architects (www.evolvearch.co.za), recently encountered the process of buying a house for the first time. During negotiations, he requested the seller to furnish title deeds and plans from the local authority to ensure no violations of building lines, servitudes, zoning, coverage, and density or other building regulations. Examining the town planning scheme is equally vital, as it may contain stipulations not evident in the title deeds, such as maximum roof heights.
Upon inspecting the property, Nick noticed a storage room built beyond the 2.5-meter building line, signaling a potential violation that would require a building line relaxation application.
SELLER’S PREPARATION
“If you intend to sell your house, it’s essential,” Nick emphasized. “Ensuring all compliance certificates are in place and possessing updated, approved plans for buildings, swimming pools, and other modifications requiring planning permission expedites the sale negotiation process.”
Regarding plans, he stressed, “As the seller, it’s your responsibility to confirm that buildings and plans comply with building regulations, with records maintained by the local council.” Lack of approved plans necessitates engaging an architect or draughtsperson (i.e., a planning professional registered with SACAP, the South African Council for the Architectural Profession) to amend or create new plans for submission to the local authority.
“For potential buyers, we recommend utilizing a home inspection service to verify all compliance certificates and the legality of buildings and plans,” he added.
PROPERTY LEGAL COMPLIANCE
Ensuring legal compliance in property transactions extends beyond the immediate parties involved. In South Africa, the adherence to building regulations is a crucial aspect of real estate transactions. The recent pronouncement by the Western Cape’s High Court serves as a stark reminder of the repercussions associated with non-compliance.
In the precedent-setting case of Allen v Scheibert (14136/2010) [2015] ZAWCHC 37, a property seller faced legal consequences for misleadingly guaranteeing approval for alterations made to buildings. The buyer, post-sale, discovered that a secondary dwelling lacked approval, rendering it illegal. The court ruled in favor of the buyer, emphasizing the importance of transparent disclosures regarding building modifications and approvals.
Nick Brits, drawing from personal experience as a principal at Evolve Architects, underscores the significance of due diligence in property transactions. During the purchase negotiation of his first house, he emphasized obtaining title deeds and plans from the local authority to scrutinize potential violations of building lines, servitudes, zoning, coverage, and density. This meticulous approach uncovered a building line infringement, demonstrating the necessity of such scrutiny.
SELLER’S RESPONSIBILITIES
For sellers, ensuring a smooth negotiation process involves having all building regulations compliance certificates in place and possessing updated, approved plans for all structures, including swimming pools and other enhancements requiring planning permission. The responsibility lies with the seller to confirm that buildings and plans comply with regulations, and it often requires engagement with registered planning professionals to rectify any non-compliance.
For potential buyers, navigating the complex landscape of property transactions necessitates employing a home inspection service to validate compliance certificates and the legality of buildings and plans. This comprehensive approach safeguards both buyers and sellers, fostering transparency and legal certainty in South African real estate transactions.
