Questions about Building Work, Building Plans, and Building Lines
Hardly a day goes by without questions from disgruntled homeowners about discrepancies in 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 illegal structures. Some municipalities have aerial photographs of suburbs taken every four years to check if alterations have been made to homes. In addition, 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 make alterations or because they want to sell. Buyers often find that a house they are buying has no approved 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 emphasises the need for building plans and approval. Therefore, it is the local authority that governs what can be done with its zoning regulations and National Building Regulations. So it is they who approve (or deny ) all building work and renovations on all properties. However, most municipalities are more lenient when it is minor building work.
The Act states that the municipality may grant relaxation where the approval of plans requires relaxation. However, you will have to apply for relaxation in writing and receive approval in writing.
If your property is in an estate, townhouse, or cluster complex, you will also need 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 practices 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 of defects existing at the time of the sale, patent or latent (but not visible). However, there are exceptions to this clause when the seller deliberately and fraudulently conceals latent defects from the purchaser. 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 about the defect.
However, the position is different when the Consumer Protection Act applies to the agreement between the parties, where the seller is a developer.
Our law states that any property with buildings erected without municipal approval is 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 for extensions or renovations he organised 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 planned. In the worst-case scenario, the municipality could order you to demolish the illegally erected structure or additions.
A significant (latent or patent) defect that affects the use and enjoyment of the property allows 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 a 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 depend on obtaining a home loan 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 granting finance. If the plans lodged with the council do not match the house as it stands, the sale could fall through and set back the seller’s plans for quite some 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 in Part A: General Principles and Requirements (previously Part A: Administration) that any structural building work 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 apply to get the proper approval from the local authority, you do not need plans! However, the law is also very clear about compliance with the regulations. Minor building work must adhere to the regulations!
Temporary Buildings
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 without 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 as:
- poultry house not exceeding 10 m² in area
- aviary not exceeding 20 m² in area,
- a 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 that 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 increases 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, the applicant doesn’t need 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 (for example: a 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.
This means that no structure except a boundary wall may be erected over the building line or servitude. This also applies to 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 written approval.
With building lines, you can apply for relaxation depending on what you require it 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 signature on the building plans.
However, if your property is in an estate, 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 a room containing a toilet pan or urinal must have lighting and ventilation.
They also specify that any habitable room must have at least one opening for natural light ( a window).
The structure must 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 extensions and renovations
Make sure you are aware of all the defects on the property you are considering buying, selling, or renovating! You should have a home inspection to protect yourself against unexpected costs, legal setbacks, and other complications!
Inspected Once, Inspected Right!®
SEE WHERE I INSPECT IN GAUTENG!
THE HOME DETECTIVE » home inspection blog » Homebuyer »