Reynolds says in terms of the National Building Regulations, it is incumbent upon homeowners to ensure that all buildings are on plan, and that plans have been approved by the local authority.
This is according to Carol Reynolds, Pam Golding Properties area principal in Durban, Durban North, La Lucia and Umhlanga, who says now, more than ever, they seem to be experiencing ongoing problems with building plans while the sales transaction is in progress. Reynolds says in terms of the National Building Regulations, it is incumbent upon homeowners to ensure that all buildings are on plan, and that plans have been approved by the local authority.
Some years ago, she says the Municipality would put a block on the issuing of rates clearance certificates if plans were not correct. This would result in extensive delays in the transfer process, as transfer cannot proceed without rates clearance.
“Unfortunately, we are finding that the same situation has re-emerged. We have had several transfers being held up because plans have not been fully complied with, and the Municipality has therefore refused to issue rates clearance certificates,” says Reynolds.
“As it is the seller’s responsibility to ensure compliance with the Building Regulations, we advise all of our sellers to get their plans in order when they are contemplating placing their homes on the market.”
It is much easier to be prepared, than to be caught in the final stages of the transfer process and find you then have to quickly draft plans and submit these to the municipality at this late stage, she says.
Reynolds says one of the recent factors to keep in mind, is that energy regulations have changed. This means that buildings that would have been compliant several years ago may not be compliant in terms of today’s regulations.
“For example, we have had several cases whereby sellers inherited properties and old outbuildings were not reflected on their plans.”
They are now being forced to submit plans for these existing outbuildings, only to find that they outbuildings do not comply with the new energy saving regulations. In some cases, sellers have had to add extra glazing, and so on, to ensure compliance.
She says they have also had legal advice on this matter, as they have done their best to minimise stress for all parties concerned, and the advice they have received is that sellers cannot rely on the voetstoots clause to protect them in the event that plans are not correct.
“It is a statutory requirement to ensure that all buildings are legal, and hence, the voetstoots clause cannot be used to condone illegal building works,” she says. “The purpose of the voestoots clause is simply to protect the seller from latent and patent defects in the property, given that the property is a second-hand property and therefore, will not be in perfect condition. Plans are governed by law, and need to be complied with.”
Reynolds says one solution that they find works best to assist the parties and facilitate the transfer process, is for the attorneys to hold a retention until such time as plans have been approved.
The attorneys then notify the Municipality that the seller has undertaken to submit plans, and that a portion of the proceeds will be withheld in a trust until such time as the plans have been passed. The Municipality then issues the rates clearance certificate so that transfer can proceed.
Normally, body corporates and homeowners’ associations are strict with plan compliance, which is positive from the perspective of ensuring overall compliance, but this too can frustrate the transfer process, as not only will the seller have to obtain municipal approval, he or she will also be required to obtain consent from the HOA or body corporate, she says. “Ultimately, we are finding that our role as estate agents has extended beyond a sales and marketing function, into the realm of offering advice and facilitating compliance with building regulations,” says Reynolds. She says it is a difficult predicament to be in, because issues over building plans can impact negatively on an otherwise happy transaction between buyer and seller. “The best way to maintain positive relationships is for sellers to accept responsibility and perform their best endeavours to ensure compliance as expeditiously as possible, and for buyers to allow the process to follow its course, without making additional demands on the seller,” she says.
Reynolds says this month, July 2015, South African Local Government Association (SALGA), introduced the Spatial Planning and Land Use Management Act (SPLUMA) of 2013, which aims to provide for the inclusive, developmental, equitable and efficient spatial planning at different spheres of government.
While addressing the legacy of past spatial planning and regulatory imbalances, objectives also include promoting greater efficiency, consistency and uniformity in decision-making by authorities responsible for land development decisions.