David’s Snippets (A collection of legal articles taken from real life in a conveyancing office.)
This week, local attorney, David, discusses freehold property.
Plans, plans and more plans! What IS the true story about these?
Today we are talking freehold property. There is a big difference with sectional title, so next time we will deal with those.
The starting point is to understand that in SA, land is the true basis of a freehold property sale transaction. The ownership rights are carried by the land part of the transaction, not the buildings, which just happen, by operation of law, to hitch a ride as part of the deal. Understanding this basic is a good start.
Now, there is no law that says that when you sell land that has buildings on it, those buildings must have approved plans for the sale to proceed. Yes, there are Municipal bye-laws that make that compulsory, but no such stipulation applies to land sales as such. So, a sale of improved land is perfectly legal without any mention of plans.
What we do have is case law that makes a failure to disclose the absence of approved plans, a latent defect in the property sale ……….. and. as we know, that failure to disclose renders the defect outside of ‘voetstoots’ and makes the seller liable to rectify. The seller can avoid that problem, if he inserts a clause that the buildings do not have approved plans. Nothing wrong with such a clause.
Oh, and by the way, any material change to the buildings will require an approved plan, so any alterations not on plan, will cause the same difficulties.
So, getting back to the issue, if you require approved plans for the buildings in a freehold property sale, it requires a positive clause inserted to that effect; it does not come about in any other way and purchasers should be mindful of this.
While on this subject, let me also warn of a trap that does arise in such circumstances. When dealing with a sale where no plans are included, Banks might well grant a bond subject to a condition that approved plans be provided. This will mean the purchaser is faced with the problem of getting approved plans for a property not yet owned, not to mention the further problem, where the transfer cannot proceed because the bond is delayed until approved plans are in place.
Hope you find this helpful?
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For previous Davids Snippets articles click here
https://www.citizen.co.za/north-glen-news/148373/davids-snippets-collection-legal-articles-taken-real-life-conveyancing-office/
https://www.citizen.co.za/north-glen-news/149416/rates-refund-process/
https://www.citizen.co.za/north-glen-news/150289/davids-snippets-collection-legal-articles-taken-real-life-conveyancing-office-2/
