Selling a house without approved plans

Do you need approved plans to transfer a property?

Not by law. Approved building plans are not a legal requirement for registration of transfer. But that is rarely the end of it:

• Banks can make approved plans a condition of the buyer's bond, and some do.
• The sale agreement may require the seller to provide them. If the agreement is silent, a buyer who wants plans has to get them at their own cost.
• The disclosure form. Under the Property Practitioners Act, when an estate agent is involved, the seller completes a disclosure form that asks whether additions and alterations were done with the required approvals.

What the courts have said

In Odendaal v Ferraris (2008), the Supreme Court of Appeal held that the absence of statutory approval for a building is a latent defect. A voetstoots clause protects the seller against latent defects. It does not protect a seller who knew about the defect and deliberately hid it.

In practice: if you know a room, carport or flat was built without approved plans and you hide it, voetstoots can fail. When an agent is involved, the disclosure form asks you directly.

How to sort it out

1. Find out what is approved. Ask the council for the approved plans on file (see getting copies of approved plans) and compare them with the house.
2. Have the differences drawn. As-built plans show the house as it stands, with the unapproved work identified.
3. Submit them. Councils treat this as a submission for existing work. Some charge more: Ekurhuleni charges double the normal fee, Midvaal 130%, and Johannesburg has its own regularisation tariff.
4. Disclose honestly while it is in progress. A buyer who knows that plans are being regularised is a different conversation from one who finds out after transfer.

Starting before the house is listed gives you time to deal with a bank asking for plans.

Questions people ask