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ARE YOU BUYING A PROBLEM WITH YOUR NEW HOME?
Buying a new home is a wonderful exciting experience, especially when you are young and buying your first love nest. But buyers must be aware that what they are getting is what they see.
With the current rather chaotic situation with many municipalities and the lack of enforcement of by-laws, you may be inadvertently buying a future problem. Is what you are buying the same as the local Municipality thinks the seller owns?
Buyers should take a little 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 more and more often coming across illegal structures on properties. 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 (and will) 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 holding the baby. What will happen if they refuse to allow you to keep the buildings that you have and get a court order for you to demolish them! Who will pay? Well firstly the owner at that time has the most to loose because they will be loosing part of the property that they bought, but what about previous owners (who may be totally innocent)? 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.
It may be that you only have to go the trouble of having plans drawn for the extensions and submitting them for approval to the local authority. However this can be quite expensive and time consuming too.
A big problem that is already causing problems is that of changes to duet units without property procedure having been followed. Remember that 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 to 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.
What is the result of these changes? Well firstly 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, really could not care less and 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.
Interesting is to see what the effects of a delay are. Say that you buy unit 1 in a duet but unit 2 did illegal alterations which result in a delay. The seller of your property was not aware of the changes or their implications. Do you have to pay occupational interest while you wait for transfer? Our legal opinion is that you would have to pay it in the normal way, but that you may well have a case to recover damages from the other owner as his/her illegal actions have actually caused you loss. Importantly the seller may loose the house that his has in turn bought because of the delay and this could give rise to a considerable damages claim against the other unit owner. Mike Spencer of Platinum Global in Bloemfontein said “This is not an uncommon problem and also occurs not infrequently in townhouse and flat developments. I have seen extensions approved or allowed by the Trustees where an owner has enclosed a stoep area including the vent piping for bathrooms and toilets. This is totally against all building regulations and will cause serious problems to somebody in the future”
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.
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