Questions about Building Work, Building Plans and Building Lines
Hardly a day goes by without questions from disgruntled homeowners relating to issues with discrepancies with house plans and building work. When I’m inspecting, I often find discrepancies between the approved plans and the built structure.
If you are selling your house, and don’t have municipal-approved plans or necessary permissions, you could be in trouble. If you are buying a house, and don’t ask for approved plans or permissions, you might have very expensive problems.
Homeowners can also be in trouble with the municipality for the erection of illegal structures. Some municipalities have aerial photographs of suburbs taken every four years to check if alterations have been made to homes. In addition to this, municipalities assign building inspectors to monitor developments on the ground.
Legal Implications of Selling a House Without Approved Plans
The law requires all major building work to have plans drawn up and approved by the local authority. Therefore, it stands to reason that every house should have plans. But this is not always the case! A lack of approved building plans is a major problem for many people buying and selling houses and other buildings.
Sometimes people only discover that there are no plans years after they have bought a property. This comes to light either because they eventually want to do alterations, or because they want to sell. Buyers often find that a house they are buying does not have plans. They then want to know whose responsibility it is to have plans drawn up retrospectively (“as-built”).
It can become a complex legal matter if alterations and additions have been carried out without local authority approval.
Are Building Plans and Building Approval Always Required for Houses?
The National Building Regulations and Building Standards Act specify the need for building plans and approval. Therefore, it is the local authority that governs what can be done in terms of its zoning regulations and National Building Regulations. So it is they that give approval (or deny it) for all building work and renovations on all properties. However, most municipalities are more lenient when it comes to minor building work.
The Act states that the municipality may grant relaxation where the approval of plans requires the necessity of relaxation. However, you will have to apply for relaxation in writing and receive approval in writing.
If your property is within an estate or townhouse or cluster complex, you will also need to get a copy of the Estate Guidelines from the Aesthetics Committee, Body Corporate, Residents Associations etc.! Moreover, there may be a list of requirements that ensure aesthetic harmony and good building practice within the estate or complex. Furthermore, you will need your plans stamped and a letter from the Body Corporate for Council indicating that they are happy with your planned building.
How the Issue of “Voetstoots” Affects Building Approval and Plans
The purchase agreement made between buyers and sellers of the property will include a voetstoots 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). However, 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 this instance, 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.
However, the position is different when 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 voetstoots clause will typically 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 (to defraud the purchaser), the seller will be liable.
Problems that can arise with building work
The lack of approved plans could lead a municipality to refuse to allow any further renovations you might have had planned. In the worst-case scenario, the municipality could order you to demolish the illegally erected structure or additions.
A (latent or patent) defect that is significant, and affects the use and enjoyment of the property, does allow you certain remedies. The most far-reaching of these is the cancellation of the agreement. You are entitled to do this if you can prove that the defect is serious enough that you would not have bought the property. Other courses of action include the reduction in the 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 you obtaining home-loan finance from a bank or other institution. Moreover, 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 the 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 can also levy fines on any unapproved “illegal” building work.
Minor Building Work
Whatever you construct on your property needs plans, unless it is “minor building work”. Even so, the Act states very well in Part A: General Principles and Requirements (this was previously Part A: Administration), that any structural building work that is defined as “minor building work” requires approval by your local authority’s building control officer before you can commence with any work! So long as you make an application to get the proper approval from the local authority, you do not need plans! However, the law is also very clear in terms of compliance with the regulations. Minor building work must adhere to the regulations!
Even temporary structures also need permission from the local authority. This includes any structure you may want to erect for a building project including builders’ sheds and on-site toilets.
The local authority will not give you the approval to build a temporary building until you give them the information they require. This is because they will need to evaluate what it is you want to do. At the very least, they have to know:
- what the planned use and life span of the building will be,
- where you are intending to put it,
- the materials used in its construction,
Minor building work means the erection of any structure such as:
- poultry house not exceeding 10 m² in area
- aviary not exceeding 20 m² in area,
- solid fuel store not exceeding 10 m² and 2 m in height,
- tool shed not exceeding 10 m² in area,
- child’s playhouse not exceeding 5 m² in area,
- cycle shed not exceeding 5 m² in area,
- a greenhouse not exceeding 15 m² in area,
- an open-sided car, caravan or boat shelter or a carport where the shelter or carport does not exceed 40 m² in area,
- any free-standing wall constructed of masonry, concrete, steel, aluminium or timber or any wire fence where such wall or fence does not exceed 1,8 m in height at any point above ground level and does not retain soil,
- any pergola,
- private swimming pool,
- change room, not exceeding 10 m² in area, at a private swimming pool
- the replacement of a roof or part thereof with the same or similar material;
- the changing of a door into a window or a window into a door without increasing its width;
- the making of an opening in a wall which does not affect the structural safety of the building concerned
- the partitioning or the enlarging of any room by the erection or demolition of an internal wall under certain conditions. These are that such erection or demolition does not affect the structural safety of the building concerned
- the erection of any solar water heater not exceeding 6 m² on any roof. This increase to 12 m² when erected other than on any roof; and
- the erection of any other building where the erection is such that in the opinion of the building control officer it is not necessary for the applicant to submit, with his application, plans prepared in full conformity with these Regulations.
So what do you need building plans for?
1) New Homes;
3) Internal alterations – including:
- walls removed, moving or added that may have structural implications,
- walls raised or lowered,
- door/Windows changes (made bigger or smaller or moved),
- changing the use of a room (example: garage into a habitable space),
- carports converted to garages,
- existing patio enclosed,
- mezzanine floor added,
- material changes;
4) Lapas and covered entertainment areas;
5) Braais with chimneys;
Building work, Building lines and servitudes
Building lines are usually 2 m on either side of the property and 5 m from the front boundary. Normally, there would also be a 3 m municipal servitude at the back of the property for sewerage or stormwater. Moreover, the servitude may even be on the property’s side. The property’s approved plans will show building lines and servitudes on the site layout.
What this means is that no structure except a boundary wall may be erected over the building line or servitude. This is also applicable for temporary buildings, garden sheds, wendy houses, carports and so on!
According to the Act, the municipality may apply a relaxation necessary to obtain approval of building plans. However, you must apply for this in writing and receive approval in writing.
With building lines, you can apply for relaxation depending on what it is that you require the relaxation for. However, you would have to submit plans and various other documents. This will include documents such as your title deed. Importantly, you also require your neighbour’s consent and signatures on the building plans.
However, if your property is within an estate or townhouse or cluster complex there may not be any servitudes or building lines applicable to your property!
What about your children, domestic workers or tenants living in a structure on your property?
Additional requirements apply if a garden shed, garage, storeroom or wendy house is used as a living area. You will then require municipality-approved building plans for them to be legal!
Any habitable room, bathroom, shower room and room containing a toilet pan or urinal must have lighting and ventilation.
They also specifically set out that any habitable room must have at least one opening for natural light ( a window).
The structure needs to conform to all National Building Regulations! The National Building Regulations apply to all buildings within the borders of South Africa!
Home inspections and the property you are buying selling or doing building work on
Make sure that you are aware of all the defects on the property you are considering buying, selling or building on! You should be having a home inspection to protect yourself against possible unexpected costs, legal setbacks and other complications!
Inspected Once, Inspected Right!®