Lost Building Plans: What happens when a Purchaser demands the plans?

Selling your property but the original building plans cannot be found?

One of the increasingly common issues encountered in residential property transactions in South Africa is the Purchaser’s request for a copy of the approved building plans.

For many Sellers, the request appears straightforward:

“Please provide a copy of the approved building plans.”

But what happens when the Seller does not have the plans?

More importantly, what happens when the Seller has made every reasonable effort to obtain them from the Municipality, only to be told that the Municipality cannot locate its records?

This creates an important distinction between the absence of a copy of a plan and the absence of an approved building plan.

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The legal starting point

The National Building Regulations and Building Standards Act 103 of 1977 requires prior written approval from the Local Authority for the erection of buildings to which the Act applies. Applications must be accompanied by the plans, specifications and other information required by the legislation. The existence of building plans is therefore not merely an administrative convenience.

Approved plans can establish, among other things, whether the structures on a property correspond with what was approved by the Municipality. This is one of the reasons Purchasers, Banks, Insurers and Conveyancers increasingly regard building-plan verification as an important part of the property transaction.

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But is the Seller legally obliged to hand the Purchaser a copy?

Not necessarily, there is an important difference between a Purchaser asking for plans and the Seller having an existing contractual obligation to provide them.

There is no general rule that every private Seller must automatically provide a physical copy of the approved building plans to every prospective Purchaser before a sale can take place. However, a Purchaser is perfectly entitled to request the plans and, importantly, may make the provision of approved plans a condition of the Offer to Purchase.

Once the parties have agreed to such a contractual condition, the position changes and the question is no longer simply: “Does the Seller have to give me the plans?”, it becomes:

“What did the parties agree in the signed agreement of sale?”

A Purchaser may therefore legitimately refuse to proceed if the agreement makes the production of approved plans a suspensive condition or an obligation of the Seller.

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What if the plans existed but have been lost?

This is where the situation becomes considerably more complicated.

Imagine the following:

A house was constructed 30 years ago.

The Seller purchased the property 15 years ago.

The Seller has never altered the building.

The Seller has no building plans in their possession.

The Seller approaches the Municipality and requests a copy.

The Municipality searches its records and advises that the plans cannot be located.

The Seller then approaches the local fire department, planning department or other municipal offices, but nobody can produce the historical plans.

Does this automatically mean that the house has no approved plans? No.

The fact that the Municipality cannot currently locate the plans does not, by itself, establish that the original construction was unauthorised, it may simply mean that the historical municipal record cannot presently be located.

That distinction should be carefully recorded and communicated to the Purchaser.

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The Seller should create an audit trail

If the plans cannot be found, the Seller should not simply tell the Purchaser that “I don’t have the plans.” That is potentially too simplistic and a much better approach is to demonstrate the steps taken to locate them.

For example:

• Obtain written confirmation from the Municipality that the plans cannot be located.
• Request a search of the Building Control records.
• Request a search of Town Planning records where applicable.
• Establish whether the Municipality has archived or digitised older records.
• Check whether the original architect, draughtsman or previous owner can be identified.
• Check historical municipal correspondence.
• Check old property files and documents retained by previous conveyancers or financial institutions where appropriate.
• Obtain any available approved plans from previous owners.
• Check whether plans may have been submitted in connection with later alterations.
• Where appropriate, make a formal request for access to municipal records in terms of the Promotion of Access to Information Act.

PAIA provides a mechanism for requesting records held by public bodies, including Municipalities. A request for access to a record of a public body is generally made using the prescribed Form 2, and the public body is ordinarily required to respond within 30 days. (South African Government)

The objective is not simply to obtain a piece of paper, but it is to establish a documented history of the efforts made to locate the municipal record.

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What if the Municipality confirms that no plans exist?

This is a different situation and if the Municipality confirms that there are no approved plans on record, the Seller should obtain proper professional advice before simply proceeding with the sale.

The next question becomes: Does the existing building correspond with what would have required approval, and is the structure presently compliant?

A registered professional, architect or suitably qualified draughtsperson may be able to inspect the property and prepare as-built drawings. These drawings can then potentially be submitted to the Municipality for consideration and approval, depending on the circumstances and the Municipality’s requirements. However, this is not necessarily a simple “redraw the plans and everything is fixed” exercise.

Consequently, a Seller should be cautious about promising a Purchaser that new plans will be approved.

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What about alterations made by previous owners?

This is another important issue.

A Seller may honestly say:

“I never built anything.”

That does not necessarily resolve the issue.

The relevant question is whether the structures currently standing on the property correspond with the approved municipal plans.

A previous owner may have:

• enclosed a patio;
• converted a garage;
• added a room;
• constructed an entertainment area;
• altered windows or doors;
• added a carport;
• built an additional structure; or
• made structural alterations.

The present owner may have had nothing to do with the alteration.

Nevertheless, the current physical condition of the property may still create a compliance issue.

This is why comparing the approved plans with the actual building is often more important than simply obtaining a document bearing a municipal stamp.

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The importance of disclosure

Sellers should also be extremely careful about what they represent to a Purchaser.

There is a significant legal difference between saying:

“I do not have a copy of the plans.”

and saying:

“The property has approved building plans.”

The second statement is a factual representation and should not be made unless the Seller has a reasonable basis for it.

The well-known South African decision in Haviside v Hendricks is an important reminder that statutory non-compliance relating to a property can potentially constitute a latent defect. A voetstoots clause does not provide an automatic shield where a Seller has fraudulently concealed a defect or misrepresented the position. (MBLH)

The safest approach is therefore transparency.

If the plans cannot be found, say so.

If the Municipality has confirmed that it cannot locate them, say so.

If there is uncertainty regarding historical alterations, disclose that uncertainty.

A transparent transaction is generally safer than attempting to create an impression of certainty where none exists.

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Can the Purchaser simply walk away?

It depends on the agreement.

If the signed Offer to Purchase specifically provides that the Seller must provide approved building plans, or that the sale is subject to the Purchaser receiving or approving the plans, the contractual wording becomes critical.

If the Purchaser’s request was made after the agreement was concluded and there is no contractual provision requiring the Seller to produce the plans, the Purchaser does not automatically acquire a unilateral right to impose a new condition.

The Seller and Purchaser may, however, agree to amend the agreement or negotiate another solution.

Possible solutions may include:

1. The Seller provides the existing plans.
2. The Seller obtains a municipal confirmation that the plans cannot be located.
3. The Seller obtains professional as-built drawings.
4. The Seller undertakes to submit the drawings for municipal approval.
5. The parties agree that the Purchaser will accept the property subject to the disclosed position.
6. The purchase price is renegotiated to take the risk and cost into account.
7. A portion of the purchase price is retained in trust pending resolution, if commercially and legally appropriate.
8. The parties agree to proceed without plans, with appropriate contractual disclosure and allocation of risk.

The correct solution will depend on the wording of the agreement, the nature and age of the property, the condition of the buildings and the Purchaser’s requirements.

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The Conveyancer’s role

This is also where the conveyancer’s role becomes important.

A conveyancer should not simply treat the issue as:

“The Purchaser wants plans, so the Seller must produce them.”

The first step should be to establish what the contract actually requires.

The second step is to establish what plans exist or can reasonably be located.

The third is to determine whether the physical structures correspond with the available records.

And the fourth is to ensure that any uncertainty is properly disclosed and contractually dealt with.

A Purchaser’s legitimate concern should not be ignored.

But neither should a Seller be treated as having breached an obligation merely because a decades-old municipal record cannot be located despite reasonable attempts to obtain it.

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A practical lesson for Sellers

If you are thinking of selling your property, do not wait until the Offer to Purchase has been signed before investigating your building plans.

Before marketing the property, consider obtaining:

1. A copy of the approved building plans.
2. Confirmation that the plans correspond with the existing structures.
3. Confirmation from the Municipality where the plans cannot be located.
4. Professional advice if additions or alterations do not appear on the plans.
5. A clear disclosure to the estate agent and prospective Purchaser.

This can prevent a relatively simple property transaction from becoming delayed for months.

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And what about the Seller’s rights?

A Seller is not automatically obliged to manufacture historical documentation that no longer exists.

Nor does a municipal inability to locate an old plan necessarily mean that the Seller constructed an illegal building.

However, the Seller also cannot simply ignore the Purchaser’s legitimate concerns where the agreement requires approved plans or where there is uncertainty regarding the legality of the existing structures.

The key is evidence, disclosure and the contract.

The Seller should be able to demonstrate:

“I have made reasonable efforts to obtain the plans, the Municipality cannot locate them, here is the written confirmation, here is what the property currently looks like, and here is the professional advice regarding its compliance.”

That is a very different position from simply saying:

“I don’t have the plans.”

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Conclusion

Building plans are increasingly becoming an important part of property due diligence in South Africa.

But the absence of a physical copy of the original plans does not necessarily mean that the property has no approved plans.

Likewise, the fact that a Municipality cannot locate an historical record does not automatically mean that the building was unlawfully constructed.

The correct approach is to distinguish between:

No copy available.

No municipal record available.

No approved plans ever existed.

Existing structures do not correspond with approved plans.

These are four very different situations, with potentially very different legal and commercial consequences.

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For Sellers, the lesson is simple:

Investigate your building plans before you sell.

And if they cannot be found, document the search, disclose the position and obtain proper professional advice before making promises about compliance.

In property transactions, transparency is not merely good practice, it can prevent a small missing document from becoming a major transaction problem.

This article is intended for general information purposes and does not constitute legal advice. The contractual terms of the specific Offer to Purchase and the facts of each transaction should always be considered.