Although problems in practice are not only limited to the absence of building plans in the event of sectional title properties, but also in the event of full title properties, this problem has proven to be more extensive in the event where sectional titles are present.
When a sectional title register is opened in the Deeds Office it is done based on sectional title plans indicating the boundaries of the unit itself. Other than in the event of full title properties the unit itself is what is transferred and which forms the subject matter of the sale whereas the erven forms the subject of the sale in the event of a full title property.
When owners of sectional title units decide to extend their unit by means of certain building additions, they effectively alter the boundaries of that sectional title unit and in many instances neglect to approve building plans via the local authority and amend the sectional title plans to reflect such new boundaries and additions.
The practical problem is that the sectional title unit’s extent and boundaries according to the registered sectional title plan now differ from the physical structure which has been extended and is normally identified when the extent and sectional title plans are compared with the physical structure by the valuator of the Financial Institution.
To rectify the aforementioned and delaying the registration of the transaction the registered owner needs to contract an architect to draft and submit amended building plans to the local authority, simultaneously with the aforementioned amended sectional title plans have to be drafted by a surveyor and lodged with the Surveyor General for approval.
As the extension to the sectional title is done on common property belonging to the Body Corporate of the Sectional Title Scheme, the land on which this extension has been done needs to be acquired from the Body Corporate at an agreed upon price and the Body Corporate further has to consent to this extension in writing.
Odendaal vs Ferraris (422/2007) [2008] ZASCA 85 Supreme Court of Appeal
This case concerns an outbuilding for which no plans have been passed and a carport which contravened building regulations and re-affirms the commonly accepted understanding of latent defects and the voetstoots clause and the absence of statutory permissions necessary to render them authorized are defects to which the voetstoots clause applies.
The Court held that the purchaser will have to be able to prove that the seller was aware or reasonably ought to have known of the absence of the plans or the contravention by default of which he will enjoy the protection provided under the voetstoots clause in the agreement.
In the light of the aforementioned it is therefore the responsibility of the buyer to employ a professional to thoroughly inspect the buildings or have the seller guarantee the buildings’ legal status.
The problem with sectional titles however are that Financial Institutions normally require the amended sectional title plans before authorizing registration of the mortgage bond delaying registration of the transaction considerably. Estate agents should therefore be vigilant when selling a sectional title property especially when the extent of the unit reflected on the Deeds Office search in their opinion differs considerably from the extent according the seller.
CHANGE OF LAND USE RIGHTS
A further requirement to the aforementioned was recently introduced in that the extension to a sectional title scheme is now classified as a change of LAND USE RIGHTS as described under the Spatial Land Use Management Act (SLUMA) and in terms of Section 28 (9) of the bylaws a certificate in terms of SLUMA has to be issued by the relevant Local Authority consenting to the amendment and extension of the Sectional Title Scheme. All of the aforementioned unfortunately causes a delay in the transfer of sectional title units where these requirements have not been met and it is therefore imperative to start the process sooner than later to prevent unexpected delays and financial losses.
