Question posted in the Property Law category relating to Gauteng
I am buying a house and the seller says that the plans for the house have been lost by the council. The selling agent has agreed to have new plans drawn up, but I want to understand the risk that I am taking on by buying this house. The way I see it is thus:
1) If the plans are lost, new plans will have to be accepted by the council so there is no issue.
2) If they manage to find the plans (on microfiche, or some other archive), and those plans match the existing structure, there is no issue.
3) If they manage to find the plans (on microfiche, or some other archive), and those plans DO NOT match the existing structure, there is an issue. It is this scenario that I need to understand. What is my risk here? I understand there is possible punative action (I understand it to be a fine and/or being required to demolish parts of the house that are not on the plans).
Can you help me understand the risk here please? What are the size of the fines? How can I protect myself? The seller has moved countries and cannot solve this problem, so will sell the house without plans. I am okay to accept it in any scenario other than this scenario.
Answer to the Question
Hi there and thank you for your question,
If the plans are lost by the city council then you will need to be able to prove that your house (the house you're buying) has been built in accordance with approved plans. That means that you might need to be able to submit a copy of the plans (with the approved stamp) to the city. You might be able to contact (or as the current owners to contact) the builder who might have a copy, or the architect?
If nobody has any approved plans, then the city will need to accept that the house was built in accordance with approved plans. They won't be able to dispute your allegations that it was... so the city will then have no other choice but to accept the new plans and place those on file!
So, regarding (1) - yes.
(3) This is the same exact issue that ALL people who purchase a house face. That is why it is (to a large degree) quite important to check that the house has been built in accordance with approved plans. OR, to include a clause in the sale agreement in terms whereof the seller WARRANTS that the house has been built in accordance with approved plans. If it turns out that this warrant is false, then you can sue the seller for your damages to fix the house.
(3) part 2 - Yes, the city will order you to ensure that your house complies. This means that you need to get plans drawn up to match what has been built (I'm thinking of add-ons, built without plans). If there is a part of the building which CAN'T be approved (i.e. not in line with building code) then the city could force you to demolish that portion. In other words, get approved plans submitted or demolish.
You could sue the seller if they told you everything was above board and it wasn't.
If the seller has moved countries, the best that you can do is a warranty clause in the sale agreement. That would mean that you would need to sue the seller in the country he moves to ($$$$$) however that might be an option. The only other thing that you can do is to ensure that you are not over-exposed in your capital outlay.
Remember, the city will always give you the option of having plans drawn up if your house has been built correctly. No fines payable. Just get the plans in. The parts of the house which can't be approved, might have to come down.
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