Illegal alterations create problems

With the current, rather chaotic, situation of many municipalities and the lack of enforcement of by-laws, home seekers may be inadvertently buying a future problem. Buyers need to ensure that what they are buying is the same as what is documented with the local Municipality.

Buyers should make an effort to demand or obtain a copy of the approved plans from the local authorities. With the current lack of control by local municipality planning departments we are coming across illegal structures on properties more often. These take a number of forms and include extensions built without plans, buildings that do not comply with the plans that have been submitted and additional buildings, especially flats and second homes that have been added without application for removal of restrictions on the title deeds.

In the first case these extensions may not always comply with municipal requirement and national building regulations while changes that have been made not in accordance with the submitted plans are often built over building lines. In both cases when this comes to the attention of the planning department, not only will expensive additional plans be required but it is possible that the buildings will not be approved at all and will have to be demolished.

A big problem that is raising its head is where people have built or converted existing buildings to second homes or flats. This may well be prohibited by the existing title deed of a property that allows only one residence per property. Unless this condition is uplifted a second residence cannot be approved by the local authority.

In practice there are a number of problems that can arise. At some stage the illegal alterations will be discovered by the local authorities and they will take action against owners at some stage in the future when they become better organised. The problem is that the owner at that time will be the one who is left with the problem. What may happen is that they might refuse to allow you to keep the buildings that you have and get a court order for you to demolish them.

The owner at that time has the most to lose because they will be losing part of the property that they bought, but what about previous owners; who may be totally innocent as well? The current owner will be entitled to sue the previous owner that he bought from for all the costs that he incurred including damages for the loss of the portion of the property that had to be demolished. And so on down the line to the person who put up the illegal buildings. Obviously the difficulty would be if it was not possible to trace one of the owners or if the owner had died for example.

A big issue that is already causing problems is that of changes to duet units without property procedure having been followed. A duet unit is a sectional title unit like any other townhouse or flat. You cannot just make changes as you like. Unfortunately many owners of duets think that they can deal with them like subdivided erven. Duets never seem to comply with the requirements of the Sectional Title Act and certainly don't collect levies and don't hold AGM's.

If an owner changes his or her property, even legally with municipal approved plans, he still needs to change the sectional title plans too. This can prove to be quite an expensive exercise and unfortunately is seldom done. In fact these changes are almost always done without permission of the Body Corporate (the other owner) and are thus, in terms of the Sectional Title Act, illegal.

The results of such changes are that it is quite likely that the seller of the unit where no changes were made will not be able to give transfer of the property that he/she sold, because the bank will require an amended copy of the sectional title plans. Even if the non-selling owner agrees to go to the trouble and expense of updating the sectional plans this could take a considerable amount of time as the plans have to be redrawn, an attorney instructed to register the changed plans etc.

If the alterations do not have municipal approval then this will take even longer to achieve and could take as long as a year before transfer cannot take place. And what happens where the other owner, who made the illegal changes, is not co-operative? So it is a good idea to get a copy of the sectional title plans for a duet when you buy and make sure that your purchase can be registered.

In conclusion it would be a good idea to obtain a copy of the plans of the property that you plan to buy and make sure that they match the buildings on the ground. Then make sure that the seller will fix up and differences as soon as possible.

For more information contact 051 447 4711 or send an email..

Readers' Comments
As an estate agent, I come across problems like this (additions without approved plans, and alterations that does not conform to building regulations) on a daily basis. I took the time to visit our local municipal offices and found that building inspectors truly appreciate it when estate agent work with them in identifying and also assisting in rectifying these problems.

I believe it is an estate agents duty to at least try to identify possible problems and to inform prospective purchasers of possible problems. The easiest way to be sure is to apply for a "Building Clause Certificate" or "Bou Klousule Sertifikaat" in Afrikaans at the building Inspectors office. They do it for free and it gives both the buyer and agent peace of mind that they will not have "comebacks".

If a building does not conform to the standards, it is better to walk away or to know of it before hand than trying to do your own inspection with only the municipal plans which you might miss intrepid if you do not have suitable knowledge.

With regulations and training requirements tightening on estate agents in the coming year, I truly hope that this is one of the areas that will be addressed to ensure a higher level of professional service in the Property Market.

Best Regards
Werner Geere (Fanie Booysen estates – Welkom)
084 508 1414

Thank you for an excellent article. Perhaps you could forward the following problem to the author of the article about illegal alterations please or provide me with his/her contact details please?

I bought a freehold house in a complex in JHB about 15 months ago. When I enquired about the plans at the council some months later, I was told there were no plans for my house. Furthermore the council is charging vacant land rates for the property (the seller did not have this problem) and when I enquired about fixing this I was told that I needed to present them with a certificate of occupancy which I do not have. The seller claims not to have the plans either. The house is probably about 6 years old. I'm uncertain as to how to go about fixing this problem. I spoke to the property inspector for my area to ascertain if the plans were with him but they are not. I have also attempted to trace previous owners with no success via names from the deeds registrar. I am unsure of what to do next. I'd like my property to be legal but I have limited time/funds to devote to solving the problem and suing the seller may be problematic as the sale agreement was voetstoots and the problem may not be his fault to begin with. I have not pursued the problem in detail with him other than asking for the plans as I'd like some clarity on what my options are first and what the legal ramifications are.

I'd appreciate any advice you can provide.

PPS. I am astounded that something like this is even possible - you'd think that transfer attorneys or someone involved in the food chain would actively check for this sort of problem but they appear to want to do as little as possible. I wish your article had been published before I bought my house!

Thank you!!!
Name withheld

I am like everyone else renovating, and the one thing we always 'forget' as the homeowner or willingly accept is the lack of credentials from any prosective builder/service agent / contractor. It is the duty of the homeowner to be satisfied with the professional accreditation and experience of the contractor by asking for contactable references. Any contractor worth their salt will have this info, but...and this is a big but..where most people only have themselves to blame is they employ so called 'cheap labour' on the street corner, every on of which can build, plaster brick lay etc...

I have learned from experience that using a member of these contractors associations mean absolutely nothing in the long run as in most cases you pay your membership fees and your'e accepted as a bona fide contractor and when you look for recourse for shoddy work/absconsion etc they shrug it off and say they will 'investigate'.

The answer i have found is to literally 'do it yourself', i ask questions from the building suppliers, buy books like the cash build product catalogue which gives you rates etc for building costs, i then 'google' my queries get some examples online, phone the local council guys to get advice and pick everyones brains at the plumbing supply places etc.. this is not only fun but you go on an extreme learning curve!Remember that local council rules must be applied and you must follow the rules for submitting plans etc.

Shane

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