Are Your Building Plans Legal?

If you have altered your house without official plans, you could be in serious trouble when trying to sell your property, as there is diminishing protection under “voetstoots” as banks now demand the complete and correct building plans upfront before financing, and the local council could impose heavy fines.  Historically on selling, voetstoots would make it a problem for the new buyer; but now – should they for example decide to sell it on – the problem could return to your doorstep if you don’t resolve the issue.
 
Did You Know?
The term voetstoots, a principle found in our common law, literally means sold “with a shove of the foot”, or as is with no warranties or guarantees, i.e. entirely at the buyer’s risk. This means that a buyer agrees that they buy an item as it appears at the time of sale and cannot later claim against the seller if he finds certain defects.
 
The property sector is currently seeing a legal shift away from the protection of “voetstoots” for property sellers with illegal or unapproved structures.
“The courts now place the responsibility of ensuring that there are approved plans for the property directly on the seller,” says Liesel Greyvenstein, one of the directors of Greyvensteins Attorneys, adding that while the voetstoots clause remains valid within the realms of common law and is a standard provision in sales agreements, it no longer offers blanket ‘as is’ cover, nor the guarantee of a smooth property transaction.

Unapproved building plans are becoming the biggest headache in property transactions today, owing to the tightening of legal requirements around approved plans. There is a strict process to follow in terms of extensions, alterations, and the building of all structures on a normal freehold property. 

Do you need a building plan?

- If you plan to make any changes to the structure of your home, you will need building plans, even if you only plan on making changes inside.
- Changes to the sewer system will also need building plans. 
- Then there are additions. Anything that is covered by a roof will need a building plan, and yes, that includes the common garden variety Wendy House.
- What is more, is that most people situate the Wendy house in the corner of the yard, and therefore over at least two building lines. When the building inspectors see this they become really interested. 
- Lapas, lean – to’s and other types of sheds all need building plans. You might be surprised to learn that even shade – netting, those big shade – nets that people pull their vehicles under, need building plans. 
- Even if you are repairing or replacing an existing part of a building with something that is going to be exactly as the old part was, you might need a building plan, such as when you want to replace your roof. 

The best thing would be to contact your local council and ask them. Tell them about your plan, and get clarity on whether you will need a building plan on not. 

Buyers and their banks now almost always want plans of the property, without which sellers run some serious risks: aside from the legal implications, getting illegal extensions approved can further delay the transfer process, risking the bank’s withdrawal of financing. As such, banks are less and less willing to finance property purchases unless provided with registered plans upfront.
Unfortunately you could still be held liable for a fine imposed by the municipality for owning a dwelling that does not comply with the approved building plans or may have to demolish parts of the dwelling that are not approved in order to ensure compliance.

In conclusion, when selling with unapproved plans do not assume that voetstoots will protect you post-sale; buyers now have recourse, so sellers beware!

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