“If you think education is expensive, try ignorance”

“If you think education is expensive, try ignorance”
MCademy “If you think education is expensive, try ignorance”

Legal issues pertaining
• Building plans • Sectional plans • Zoning & property rights 24 April 2013

Multidisciplinary nature of problem
Legal Town planning Agent Surveyor City Council Architect

Multidisciplinary nature
Property law is complex Architects Surveyors Work together Town planners Conveyancers Agents

Purpose of seminar 1. Hear from experts – other fields
2. Answers on FAQ 3. Give direction future

Sonja du Toit Skills & Expertise Education Conveyancing Property Law
Commercial Contracts Sectional Title Development Township Establishment Notarial Work Education University of Pretoria LLB (Cum Laude), BLC (Cum Laude), Director at M.C. van der Berg Incorporated Attorney, Conveyancer & Notary

SECTIONAL TITLES

1. How did sectional titles originate?
2. Differences between sectional title and full title 3. Opening of a sectional title scheme 4. Terminology 5. Extension, subdivision and consolidation of a unit

1. How did sectional titles originate?
Definition of property ito common law: - Ground - Structures attached thereto Shortcoming of the definition - no ownership of “flat” Solution to the problem - Previously: share block schemes - Sectional titles act

Sectional title 2. Differences between sectional title and full title
Owner of erf and structures attached thereto No body corporate Can improve the property with approved building plans Rates & taxes and consumption of water & electricity payable to local municipality Owner of the unit & undivided share in common property Body corporate – all owners are members Consent by body corporate, building plans and new sectional title plans for improvements Rates & taxes and consumption payable to local municipality

PROPERTY INFORMATION PROPERTY INFORMATION Property Type ERF Erf Number
Property Type ERF Erf Number 776 Portion Number 15 Township CLUBVIEW EXT 39 Local Authority CITY OF TSHWANE METROPOLITAN MUNICIPALITY Registration Division JR Province GAUTENG Diagram Deed T86055/1994 Extent SQM Previous Description - LPI Code T0JR PROPERTY INFORMATION Property Type SECTIONAL TITLE UNIt Unit 1 Scheme Name SS SNEAD MANOR Scheme Number/Year 134/2008 Situated At CLUBVIEW EXT 90 , 1095 , 0 Local Authority CITY OF TSHWANE METROPOLITAN MUNICIPALITY Registration Division JR Province GAUTENG Diagram Deed - Extent SQM Previous Description LPI Code T0JR ,D553/2007

Example: If levies are R5 000 per month:
Unit 1 pays: R x ,2597% = R2 012,98 Unit 2 pays: R x ,7403% = R2 987,02

3. Opening of a sectional title scheme
• Sectional title plans - drafted by surveyor approved by surveyor general • Application drafted by conveyancer • Annexure 8 and 9 to sectional titles act: Rules • Lodge at deeds office • Separate titles: Certificate of registered sectional title

4. Terminology Unit Section Common property Exclusive use ( sect 27)
Right to extend

Unit: Section + undivided share in common property
Section = house Common property: Areas surrounding unit Exclusive use ( sect 27) in terms of notarial in terms of rules deed of exclusive use Real right cannot be bonded can be bonded

Right to extend: addition of more units
- Developer - On opening of scheme - For a specified period - Horizontally or vertically

5. Extension, subdivision & consolidation of a unit
Extension of a unit (Usually problem with duets) - In addition to building plans - Consent body corporate - Approved surveyor general plans - Application to extend – conveyancer - Letter by surveyor - 10% or less increase in participation quota - More than 10% - consent by all bondholders - Effect on exclusive use areas Simultaneously with transfer Also possible to subdivide and consolidate units

Velocity Townplanning
Lydia Lewis Skills & Expertise Strategic Planning and Integrated Planning Township Establishment Applications Development Control applications Development Investigations and Advice Urban Renewal & Township Designs Due Diligence studies / Property Audits Education & Membership University of Pretoria B(TRP) Professional Planner: South African Council for Town and Regional Planners (TRP(SA)) South African Planning Institute (SAPI) South African Association of Consulting Professional Planners (SAACPlan) Managing Member of Velocity Townplanning & Project Management

TOWN PLANNING IN GAUTENG 101

Introduction to town planning
Why Town Planning? Spatial / Strategic Planning Town Planning Schemes Types of land use applications Professions involved Process Applications Land Development Requirements (LDR)

Introduction to townplanning

Introduction B(T&RP) UP, TRP (SA)
Lydia Lewis B(T&RP) UP, TRP (SA) Member of: - The South African Council for Planners (SACPLAN) - The South African Planning Institute (SAPI) - South African Association of Consulting Professional Planners (SAACPP) A broad overview of town planning, terminology, processes, land use management and other useful information.

Why Town Planning?

Thus: What may happen where in the city, and how much of it.
Town and Regional Planning is the process of making decisions on the development and use of land. It is a tool for guiding and facilitating development and regeneration in a way that also preserves the best features of our environment. Thus: What may happen where in the city, and how much of it.

Spatial / Strategic Planning

- Regional Spatial Development Frameworks (RSDF)
Strategic planning,(forward planning) - Regional Spatial Development Frameworks (RSDF) - Local Development Frameworks (LDF) - Spatial Development Plans (SDP). Planning authorities use these documents to control development and determine planning applications. Very important developing tool. - Uses - Densities, etc Policies Guest House, Creche, Commune, Second Dwelling, Home Office, etc. Environmental

Spatial Development Plan / Framework

Town Planning Schemes

Land uses are managed by what are known as Town-planning schemes.
Each municipality has its own, unique Town-planning scheme Tshwane is using The Tshwane Scheme of 2008. Title Deeds In addition to the zoning regulations, development is also controlled by conditions of title. These conditions are set out in the Title Deed of each property, and can restrict the way in which a property may be developed. “The erf may not be subdivided, except in special circumstances, and with the written permission of the Administrator”. “The erf may only be used for the purpose of a residential dwelling...”

Town Planning Schemes (Land use management) Residential 1
Business 1 Business 2 Business 3 Business 4

Types of land use applications Township Application
Any property with the zoning of “agriculture” are subject to a township establishment application in terms of that area’s Town Planning Scheme

- Geotechnical Engineer - Conveyancer - Town Planner
Professions involved A land use application is a comprehensive action that includes critical information from many professional disciplines. - Environmental consultant - Land surveyor - Electrical Engineer - Civil Engineer - Traffic Engineer - Geotechnical Engineer - Conveyancer - Town Planner

Process After all the information of the abovementioned professions became available, the TP can commence to design the plan. The layout plan is the end result of all information available.

Rezoning Application - A rezoning application is basically when you want to change the zoning (use) of your current erf to a different zoning, or if you want to increase the bulk (fsr) or density of your property. Done in terms of the Town Planning Ordinance, 1986. In line with Spatial Framework? Every individual erf has it’s own zoning (no blanket zoning). Timeline Costs

Process (public participation, council circulation, external
Process (public participation, council circulation, external circulation) Submission (including the Bondholder’s Consent). Advertised in the Provincial Gazette and 2 other newspapers for two consecutive weeks Site notice is displayed on site for 14 days. Period for objections is 28 days. Application is distributed to the different departments of the Municipality. - Comment period is 60 days from submission. The City Planning Division makes a recommendation which is referred to the applicant for comments. The application is approved and the amendment scheme is promulgated in the Provincial Gazette

Zoning Certificate

A rezoning application is subject to certain bulk services
Contributions payable to local authority. Bulk services contributions can be regarded as taxes levied by the local authority for the increase in the capacity of the existing storm water drainage sewer system water provision electrical network upgrading of roads due to the rezoning application and is determined according to the area / ”bulk” of the new development. From “Residental1” erf to “Business 4” erf = ± R

consent use application Is not a permanent right.
When? rezone consent use application Is not a permanent right. A Consent Use application in terms of the relevant Town Planning Scheme.

Removal of Restrictive Conditions Application
The importance of title conditions as development control measures has diminished over the years due to implementation of more effective & flexible policy documents & laws such as Town Planning Schemes and Municipal Ordinances. - Building Lines - Uses - Building Materials, etc.

Subdivision Application
A subdivision application is done when you want to subdivide an existing erf into two or more parts. Things you must consider when you want to subdivide: - Density policy - Restrictive conditions in the title deed - Servitudes Time & Costs

Consolidation Application
When you want to consolidate two or more portions with each other.

Things you must consider when you want to consolidate:
- Same rights - Same owner - In the same township Notarial ties Application advertised in the press or on the property itself the approval thereof is left to the discretion of the Council - Section 38 process

Other Applications Purchase of Council land Second dwelling
Relaxation of building lines Advertisements along the Provincial / Gautrans Roads Etc.

Land Development Requirements (LDR)
What is LDR’s? The rules which you must oblige to in order to do a development on a specific site. Specifically set out in every Town Planning Scheme

Floor Area Ratio or FAR (FSR) Height Parking Requirements
Includes the following: Landuse Coverage Density Floor Area Ratio or FAR (FSR) Height Parking Requirements Building Lines

Skills & Expertise Education Eamon Swart Township Establishment
Sectional Title Practitioner Replacement of Erf Beacons Education University of Pretoria BLandm (Cum Laude), Land Surveyor

S V R Land Surveyors 246 Willem Botha Wierda Park

Introduction Role of Land Surveyor What does a Land Surveyor do?
Requirements before submission to Surveyor General Sectional Titles Extension of Section

Role of Land Surveyor

• University degree • Register at Institute of Professional Land Surveyors • Working closely with: o Town Planners o Architects o Transfer Attorneys o City council

What does a Land Surveyor do?

• Cadastral o New Townships o Consolidations o Sub Divisions
o Servitudes o Sectional Titles o Replacement of Erf Beacons

• Non Cadastral o Detail Surveys o Construction Surveys

Requirements before submission to Surveyor General

• Consolidation Approval from Town Council 60 Days after Submission

Example:

• Sub-divisions Approval from Town Council Pegging of Erf or Erven
Not the Remainder

Example of Parent Diagram

Example of Sub-division Diagram

Original Erf

Sectional Titles

Why Sectional Title? • Necessary when you have more than one owner on a single property (erf or stand) examples o Block of Flats o Town House Complex o Duets o Game Farm Developments

• Pre-requirement for Sectional Title Submission to
Surveyor General o Second Dwelling Approval (City Council) o Approved Building Plan o Buildings Completed to Roof Height

Extension of Section

• Any addition i.e. o Stoep o Balcony o Car Port o Loft o Garage o Additions to Existing Building

Example: Sheet 1

Example: Sheet 2

Example: Sheet 3

Example: Sheet 4

Please Remember Home owners either have approved building plans or no building plans but seldom sectional title plans for extension of section ! ! ! ! ! ! ! Once the property is put up for sale please check if building plans and sectional title plans are up to date.

Tertius Horak SKILLS AND EXPERTISE EDUCATION
Residential property design Commercial property design Industrial property design Project Management Quantity estimation EDUCATION Technical College SA Nat. Tech. Dipl. (Construction & QS) QBE Owner – KAROH ARCHITECTURAL DESIGN STUDIO Senior Professional Architectural Technologist

Introduction

South African Council for the Architectural Profession
1 Architect (degree) 2 Senior Professional Architectural Technologist 3 Professional Architectural Technologist 4 Professional Draughtsman

The role of professionals is multi-functional.
1 Advice on a wide scale related to the full scope of works 2 Advice related to SANS 10400 3 Advice related to Town planning scheme and by-laws 4 Practical design 5 Supervision and quality control Ultimately to assist a client in achieving his goal within the requirements of the trade

The process of plan approval
Submission of any building plan with any authority vests only with persons registered with SACAP.

Time frame to approve plans
Plans are generally approved by City councils City councils have 30 days Disputes with city council interpretation Plans can be obtained by or with consent of the registered owner Responsibility of the home owner to always produce proof of approved plans Loss of plans at city council

Timeframe for plan approval
1. Scope of project, appointment and design weeks 2. Finalizing of plans & documents, signatures weeks 3. Submission to Council days 4. Approval by Council weeks

Process of approval at Council
1 Submission of documentation and plans to Building office 2 Registration by building office 3 On site inspection by building inspector Scrutinizing of plans by Plan examiner 5 Geology 6 Transport 7 Water & sanitation

8 Health 9 Electricity 10 Fire 11 Town Planning 12 Roads & storm water 13 Subdivision & consolidation 14 Property Services Finance Occupation certificates

Cost of plan approval Example eg. 80m² addition not yet on plans
Professional fee R (3,5 -7,5% of contract value or rate per m²) Buildingline & height relaxations R Plan copies, documents and preparation R Appointment of engineer Submission to Council R11 per m²) R Other applications to Council fire) Administrative fee for runner R Council submission fees 11.00/m² with a minimum fee of R Additional fees

Problems occurring due to different requirements of the old and new regulations
Implementation of the new National Building Regulations (SANS 10400) 2010.

The role of a SDP for commercial properties
Site Development Plans (SDP) Purpose of a SDP

Coverage, FAR and GFA Coverage is expressed in percentage terms
It is calculated as the area as a percentage of the total ground floor area divided by the total site area FAR (floor area ratio) is expressed as a ratio of the total of all floor areas divided by the total site area The reverse calculation to determine the maximum FAR is by multiplying the GFA (gross floor area) by the area of the property

The role of parking on commercial properties
The Townplanning Scheme.

Requirements regarding the NHBRC and Enrolment
The principle to create a fund All new residential structures Compulsory irrespective of finance Guarantee for a five year period Cost of enrolment Enrolment not applicable

Frequent questions Where and how are building plans obtained?
Who may apply for such plans? What is the cost? How long does it take? What if plans are missing or non existing?

What is the cost to re measure and provide new plans for a structure and how long does this take?
1 New house 2 Additions Pools, wendy’s, lapa’s etc What plans or permission is required to build something which was already approved on a previous plan but not concluded at that point in time? Availability and fees

Dougie Donald Education Skills & Experience NHDP Building Management
21 Years –City Council Building inspector Chief Building Officer –Tshwane Metro Region 4(Centurion) Chief Building Inspector Building Control Office Region 4

Building inspections

Building Control office (Tshwane)
Building Control officer (Tshwane) Deputy Director Deputy Director Regions Akasia Sinoville Pretoria Centurion Cullinan Pta East Kungwini Central & West Office Manager

Office Manager Chief plan examiner Architect Chief building Inspector (Dougie Donald) 6 Building inspectors Law enforcement Officer 6 Zones in Centurion

Duty of Building Control Office
Building industry + All buildings in Tshwane are built according to National Building regulations Town planning scheme RSA Tshwane

National Building regulations SANS 10400 of 2010
Act for whole RSA e.g. Materials SABS Stairs Ventilation Ceiling heights Fire installation Stormwater Foundations Safety Drainage Roofs Walls Floors Glazing

Town Planning scheme • Every town • Differ from town to town • Akasia
Pretoria Tshwane New Town planning scheme Centurion

What does Town planning regulate?
• Zoning • Building line • Floor space ratio (FSR) • Density • Height of buildings • Storeys

When do we inspect? 1. If requested by owner
• Are building built according to National building regulations (NBR)? 2. Complaints & inspection • Enforce law if buildings out of National Building regulations NB: Duty on current owner to ensure building is according to - NBR - Town planning scheme

Occupational certificate
When? 1. New buildings 2. Addition to buildings 3. Structural alterations to buildings 4. Additions to property Before 2000 After 2000

Process to obtain occupational certificate
1. Submit building plans 2. Approve building plans 3. Request all necessary inspections 3.1 Foundation 3.2 Floor level 3.3 Roof 3.4 Open drain 3.5 Final drain 3.6 Final building

Certificates Foundation Stairs • Engineers Slab Roof • Glazing (glass) • Electric • Plumber 5. Occupational certificate

Owner uncertain • Building plans
Anyone inspect (seller / purchaser / agent) No copies Building office Centurion c/o Basden & Rabie streets Centurion Pretoria across Munitoria Isivono building Akasia Dale street, Karenpark

What must be on a plan? 1. Buildings 2. Swimming pools 3. Lapa
4. Wendy house 5. Boundry walls 6. Walls 7. Louvre deck 8. Carport

Transfer by conveyancer
• NBR every owner must have plan • Inspector enforce against current owner • Excuse ignorance! NO • No prohibition to transfer? • Banks? • Possible future legislation

Advice • Sellers: 1. Make sure if plans are in order
2. If not, get plans in order Occupation certificate • Purchasers to make sure plans are in order

Enforcement 1. NBR e.g. • Stairs • Ceiling 2. Town Planning scheme
• Density • Storeys Notice to correct

Tiaan (M.C.) van der Berg Skills & Expertise Education Conveyancing
Property Law Notarial Work Mediation Contracts Practice Management Education University of Pretoria/AFSA Higher Diploma in Alternative Dispute Resolution (Cum Laude), 2000 University of Johannesburg Higher Diploma in Labour Law, 1997 University of Pretoria LLM (Constitutional Law), 1994 LLB, BLC, Director at M.C. van der Berg Incorporated Attorney, Conveyancer & Notary

Framework The problem Can MC (your attorney) transfer property
Obligation to disclose - seller Obligation to disclose – agent Where does this leave purchaser? Your dilemma Our advice

The problem Building plans generally not in order
Sectional plans not updated Insurance Home Owners Association Banks may require Purchaser may require Future legislation Estate agent wants to earn a living Not one solution Estate agents approach can differ

Framework The problem Can MC transfer property

2. Can MC transfer property?
Any prohibition to transfer property? • Building plans • Sectional plans not in order • Zoning • Occupational certificate In other words: A. Statutory prohibition? B. Contractual stipulation? C. Bond condition?

A. Statutory prohibition? currently none future legislation?

B. Contractual stipulation? • Condition vs warrantee • Condition - add clause to contract “the seller must provide the purchaser with approved plans before transfer” -Obligation on MC -can only transfer • if plans are approved! • If plans are not approved - only with consent from purchaser - then approve after registration ▪ retention? ▪ problem - can plans be approved? ▪ how long will purchaser wait?

B. Contractual stipulation? • Condition vs warrantee • Warrantee - Add clause to contract “seller warrantees that plans are in order” Obligation on Seller: - Sidestep defect issue Purchaser cancels ? If not Lower purchase price Purchaser enforces warrantee

C. Bond condition? • Contract subject to bond Building plans Legal status of Sectional plans bond? • Bank requires Zoning Occupational certificate Only conditional Comply with request Seller can Suspensive condition not fulfilled Bond only conditionally approved Therefor no transaction

Framework The problem Can MC transfer property?

3. Obligation to disclose – Seller?
• Zoning • Building plans not in order • Sectional plans • Occupational certificate Must seller inform purchaser? A. Statutory obligation to disclose? B. Common law obligation to disclose?

A. Statutory obligation to disclose
Consumer Protection Act Transaction = CPA compliant YES seller must disclose • Developer Seller • Bank • Speculator If not disclosed statutory warrantees or Purchaser can Reduce purchase price Right to cancel Transaction = Not CPA compliant NO obligation on seller to disclose NO statutory warrantees • Typical transaction

In absence of legislation
B. Common Law obligation to disclose In absence of legislation Default – common law Non CPA transactions = subject to common law Important to understand common law

B. Common Law obligation to disclose ….
Defects existed before 24 April 2013 Contract concluded Common Law Patent / Latent defects Regulate position Building plans Sectional plans Zoning Occupational certificate

Definition A. Patent vs B. Latent Obvious vs Hidden

A. Patent defect Patent defect is visible or visible with reasonable inspection Zoning Zoning certificate Building plans City council Sectional Title plans Deeds Office Can argue legal defect = patent Therefore advise purchaser to inspect

A. Patent defect… If legal defect = Patent Common Law Caveat Emptor!(Purchaser beware) THEN Zoning Legal obligation on purchaser to ensure Building plans are in Sectional plans order No legal obligation on seller to disclose

B. Latent defect… Latent defect is not visible or visible with reasonable inspection

There is no latent defects!
B. Latent defect… If legal defect = latent Common Law Seller Purchaser As general rule seller is liable for latent defects Warranty There is no latent defects!

There is no latent defects!
BUT Voetstoots (as is) reverses position Voetstoots clause excludes / cancels warranty Most estate agent’s contracts If Voetstoots no warranty against latent defects If Voetstoots Latent defect = purchaser’s problem Warranty There is no latent defects!

UNLESS Seller 1 Knew of latent defect *Onus of proof
2 Fraudulently & on purchaser • Deliberately conceals existence • To move seller to buy * Very difficult to prove If purchaser can prove seller’s problem

non-compliance with Building Regulations?
Is legal defect e.g. non-compliance with Building Regulations? Patent Latent

Van Nieuwerk vs McCrae (Witwatersrand High Court) (2007)
• No approval of Building plans • High court “assumption there is an implied warranty Buildings are erected in compliance with statutory requirement” • Voetstoot clause in contract • Court rules - Voetstoots clause only relates to physical defects - Physical nature i.e. geyser, roof, sewerage etc Not legal issues i.e. plans, zoning Therefore : Purchaser can assume plans are approved as on date of contract

Odendaal vs Ferraris (Supreme Court of Appeal) (2008)
Facts • Seller appoints estate agent • Purchaser introduced to property by agent • Purchaser inspects property • No access to an outbuilding • Agent assured purchaser property is in faultless condition • Contract is entered into

• Purchaser occupies property before registration
Purchaser notices sewerage manhole in outbuilding before registration • Purchaser approaches Municipality • Ascertains outbuildings not on plans • Purchaser instructs bank not to register bond • Seller sees this as repudiation, places purchaser on terms and cancels transaction Purchaser refuses to accept cancellation • Seller approaches court to evict purchaser

• Seller argues: Legal (plans) defect is latent Voetstoots clause protects seller Problem is purchaser’s • Purchaser argues: 1. Voetstoots not applicable o Van Nieuwerk vs Mc Crae (W) o Implied warranty buildings are erected in compliance with statutory requirements o Voetstoots only deals with physical defects o Voetstoots does not deal with legal defects Voetstoots clause of no effect 2. Seller had prior knowledge Furthermore Seller knew of defects Had to disclose

Supreme Court of Appeal
Court rules Contravention of Building Regulations = Latent defect Physical defects Voetstoots clause protects seller latent and patent Legal defects Remember! Unless purchaser can prove that seller - Knew of defect - Fraudulently & - Deliberately conceals To move purchaser to buy SCA rules - Seller could not prove this

Agent 4. Obligation to disclose – agent CPA CPA Seller Purchaser
Patent No duty to ascertain any defects Latent But: If agents are aware must disclose (EAAB code of conduct) Don’t give oral warranties Advice: Purchaser must inspect properly

4. Where does this leave purchaser?
If patent defect Caveat Emptor o Inspection at City council / deeds office o Before making offer o Purchaser is not protected Purchaser must inspect If latent defect No voetstoots – common law warrantee Voetstoots o Protects seller * patent + * latent Unless seller has prior knowledge of latent o Purchaser must prove fraud o Seller is protected o Purchaser is not protected

o Purchaser is partially protected Obligation on seller to provide
Contractual warrantee o “Plans are in order” o Purchaser is partially protected Obligation on seller to provide Contractual condition o “can not register if plans are in order” o Purchaser is protected Obligation on MC Bond condition o condition in bond instruction o “provide bank with approved plans” o Risk of cancellation Cannot register

6. Your dilemma 1. Most properties not 100% on plans 2
6. Your dilemma 1. Most properties not 100% on plans 2. Legally need to be 100% on plans 3. Not legal requirement to transfer 4. Require plans from seller - ? Mandate 5. Advise purchaser to inspect – no offer 6. Ignore - initial bank requirement bank on instruction 7. unethical conduct / civil claim Property report

Property report Not a legal requirement
Not a list of contractual warranties Not a list of patent defects Not a list of all latent defects Is a list of latent defects seller is aware of Purchaser acknowledges receipt Make provision building plans sectional plans zoning 8. Protects agents

7. Our advice Different horses for different courses You must choose
1. Advise seller at listing o Establish if plans are in order o If not – get it in order immediately o Consequences Advise purchaser to o inspect at city council / deeds office o require warrantee all improvements comply with statutory and building regulations Protect yourself as agent o Don’t give oral warrantees to purchaser about plans o Advise purchaser to inspect o Use property report

VISIT US AT Or us at

Spread Kindness & Hope because People Matter

“If you think education is expensive, try ignorance”

Similar presentations

Presentation on theme: "“If you think education is expensive, try ignorance”"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

“If you think education is expensive, try ignorance”

Similar presentations

Presentation on theme: "“If you think education is expensive, try ignorance”"— Presentation transcript:

Similar presentations

About project

Feedback