When selling a residential property in South Africa, the availability of approved building plans is not merely administrative — it forms part of the due diligence process and can directly affect the progress of a property transfer. Yet it’s not uncommon for municipalities to have no formal record of the plans, even in cases where buildings were constructed decades ago or alterations were made with the knowledge of previous owners.

The absence of municipal records does not necessarily mean the structures are unlawful, but it can result in practical and legal complications. Buyers may raise objections, banks may withhold bond approval, and conveyancing attorneys may be unable to proceed with registration. In short, missing building plans can stall or derail a transaction — and often do.

Why Building Plans Matter in a Property Sale

Approved Plans Are Not a Formal Legal Requirement — But They Are Practically Essential

In South African law, there is no express statutory requirement that approved building plans must be lodged with the Deeds Office for a property transfer to proceed. A property can, in principle, be sold and transferred without them. However, the practical reality is more complicated.

Approved building plans serve as formal proof that all structures on the property comply with national and municipal building regulations. Without these, buyers, banks, and conveyancers may question whether the buildings were constructed lawfully — and whether future enforcement action could arise.

Banks May Refuse to Finance the Transaction

In many cases, especially where the buyer requires mortgage finance, the absence of approved plans can halt the transaction entirely. Banks are unlikely to release funds for a property that contains illegal or unapproved structures, or where compliance cannot be verified. Even where the buyer is a cash purchaser, legal and practical risks remain.

Buyers May Be Reluctant to Proceed Without Assurance

Buyers may hesitate to proceed with a purchase if they believe they could inherit a compliance problem. Structures without approved plans may be at risk of municipal enforcement, may not be covered by insurance, or may be difficult to resell in the future. In some instances, buyers may demand a price reduction, insert suspensive conditions into the offer, or walk away from the transaction altogether.

Conveyancers Have a Duty to Disclose and Advise

Conveyancing attorneys are also expected to act with due diligence. Where it becomes apparent that plans are missing or never existed, the conveyancer may be duty-bound to disclose this to the buyer, or advise their client (typically the seller) of the implications. Failure to do so may result in professional liability, particularly if disputes arise post-registration.

What to Do If the Municipality Has No Record of Your Plans

Missing Plans Don’t Always Mean Illegal Structures

If the local authority is unable to locate any building plans for a property, this does not necessarily mean that the structures are unlawful. It may reflect poor recordkeeping, outdated filing systems, or the fact that the original plans were never formally submitted or approved. Regardless of the reason, the responsibility for rectifying the situation lies with the current registered owner.

Start with a Formal Records Search

The first step is to confirm the absence of plans through a formal request at the relevant municipal office — typically the Building Control or Town Planning department. This request should be submitted in writing and accompanied by the property’s erf number, a copy of the title deed, and the identity document of the owner or authorised agent.

Appoint a Professional to Prepare ‘As-Built’ Plans

If no plans are on file, the only remedy is to regularise the position by appointing a qualified professional — usually a registered draughtsperson, architect, or technologist — to conduct a site inspection, draw up accurate “as-built” plans, and prepare them for submission. The plans must then go through the standard municipal approval process, which may include inspections, zoning compliance checks, and payment of application fees.

Time and Cost Considerations for Sellers

This process is both time-sensitive and cost-intensive. Depending on the nature and extent of the buildings involved, approval may take anywhere from several weeks to a few months. Sellers should factor this into their timelines when preparing a property for market, and be cautious of entering into binding agreements before the plans have been approved, unless the parties have agreed in writing to specific conditions regarding the outstanding documentation.

What If the Structures Were Built Without Approved Plans?

Unapproved Construction Is a Legal Violation

Where it becomes clear that a structure was erected without ever receiving municipal approval, the situation becomes more complex. In terms of the National Building Regulations and Building Standards Act, it is unlawful to construct any building or make alterations without first obtaining written approval from the local authority. Non-compliance may expose the owner to penalties, enforcement notices, or — in more serious cases — demolition orders.

Retrospective Approval May Be Possible

That said, unlawful construction does not automatically preclude the possibility of legal remedy. Most municipalities provide for the retrospective submission of “as-built” plans in cases where the building is structurally sound and does not contravene zoning or town planning regulations. However, approval is not guaranteed and remains entirely at the municipality’s discretion.

Zoning Violations Can Complicate the Process

Where the structures violate building lines, encroach on servitudes, or exceed permissible coverage, the municipality may require formal relaxation or rezoning applications before it will consider approval. These processes are administratively burdensome and may involve public participation or objections from neighbours. In some cases, the municipality may insist on modifications to the building, or refuse approval altogether.

Professional Guidance Is Strongly Recommended

For these reasons, owners are strongly advised to engage a built environment professional as early as possible. An experienced draughtsperson or architect can assess the situation, identify potential compliance risks, and guide the owner through the appropriate process — including negotiations with the municipality if required. Legal assistance may also be warranted in cases involving historic non-compliance or threatened enforcement action.

How This Affects Property Transfers and Conveyancing

No Legal Ban on Transfers — But Risks Abound

The absence of approved building plans can present a material obstacle during the conveyancing process. While there is no express statutory prohibition against transferring a property without approved plans, the legal and commercial implications often make it impractical — or impossible — to proceed without resolving the issue first.

Banks and Buyers May Withhold Support

Banks are unlikely to authorise mortgage finance where improvements are undocumented or potentially non-compliant. Even in cash sales, buyers may be reluctant to proceed in the face of uncertainty about the legality or safety of existing structures. The conveyancer, acting as the facilitator of the transfer, must also be satisfied that no foreseeable legal or municipal issues will hinder registration.

Conditional Sale Agreements as a Last Resort

In some cases, where timing or financial pressure necessitates proceeding before the plans are approved, parties may agree to specific conditions within the sale agreement. For example, the seller may undertake to obtain approved plans within a stipulated timeframe, or the purchaser may accept the risk and indemnify the seller against municipal action. These clauses must be carefully drafted and should only be included where both parties are fully informed of the risks.

Cost Recovery Through Sale Proceeds

Another alternative is to include an annexure to the agreement recording that the cost of obtaining plans will be deducted from the sale proceeds, provided this is acceptable to the buyer and any bondholder involved. However, such arrangements require careful coordination between the seller, estate agent, conveyancer, and financial institutions.

The Case for Resolving Plan Issues Early

Ultimately, the risk of proceeding without addressing missing plans lies not only in delayed registration, but in the potential for post-transfer disputes, legal liability, or municipal enforcement against the purchaser. For this reason, conveyancers often recommend resolving any building plan issues before the property is marketed — particularly in areas where municipal backlogs or historic record gaps are common.

How to Protect Yourself When Selling a Property Without Plans

Acknowledge the Risk — Then Act Swiftly

If you are selling a property and discover that the approved building plans are missing or never existed, it is essential to proceed with caution and transparency. While the absence of plans does not automatically invalidate a sale, it does introduce legal, financial, and reputational risk if not properly addressed.

Seek Professional Support Without Delay

The most prudent step is to obtain professional advice immediately. A conveyancing attorney can advise on the legal implications of the missing documentation and help assess whether the property can be sold lawfully in its current state. A registered draughtsperson or architect can simultaneously begin preparing plans for submission if retrospective approval is an option.

Disclose Everything — And Put It in Writing

Sellers should avoid relying on informal assurances or verbal disclosures. Instead, where plans cannot be provided, a clear written disclosure must form part of the sale agreement. This disclosure should confirm the absence of plans and indicate whether the buyer accepts the risk, intends to seek approval after transfer, or requires the seller to regularise the position beforehand.

Use Indemnities and Addendums Where Necessary

In such cases, attorneys often recommend obtaining a signed indemnity from the buyer acknowledging the missing plans and waiving any future claims against the seller. Where applicable, an addendum may be included stating that approved plans will be obtained and paid for from the proceeds of the sale — but this should be subject to the buyer’s bank or bondholder accepting the condition.

Avoid Misrepresentation at All Costs

It is also important for the seller to avoid making any representations — even unintentionally — about the compliance or legality of the structures. Statements such as “the plans are probably with the municipality” or “they were approved years ago” can later be construed as misrepresentations if they prove to be untrue. If you are unsure, say so — and put everything in writing.

Transparency is the Best Defence

The key is to manage expectations and avoid creating a false impression. Clear disclosures, early professional engagement, and precise drafting of the sale agreement are the seller’s best defences against later disputes or legal claims.

Why Early Legal Advice Can Save Time and Money

Addressing missing or unapproved building plans is rarely quick — but delaying action almost always makes the process more difficult and costly. Engaging a conveyancing attorney at the outset can help identify potential issues before they derail the transaction, while providing strategic options tailored to your unique circumstances.

Early legal involvement ensures that:

• The agreement of sale is correctly drafted to reflect the status of the building plans.
• All parties understand the risks, costs, and possible delays associated with missing approvals.
• The buyer’s bank or bond originator is informed of the situation early, avoiding last-minute surprises.
• Appropriate indemnities, disclosures, and annexures are prepared to protect you from future liability.

Importantly, a conveyancer can also liaise with municipal departments, assess the legal standing of undocumented improvements, and coordinate with professionals responsible for drafting and submitting the necessary plans. This integrated approach significantly reduces the risk of registration delays, cancelled sales, or post-transfer disputes.

In a climate where municipal inefficiencies, lost archives, and backlogs are commonplace, being proactive is not merely advisable — it is essential. Whether you are preparing to sell or have already accepted an offer, dealing with building plan issues from the outset protects your interests, preserves your credibility, and helps ensure a legally sound transaction.

VDM Attorneys – Legal Guidance When It Matters Most

Uncertainty around building plans can place property owners in a vulnerable legal position — especially when preparing for sale. At VDM Attorneys, we assist clients in identifying risks early, navigating municipal requirements, and structuring agreements that protect their interests.

For tailored legal advice on property transactions, compliance, or conveyancing, speak to our team of conveyancing attorneys.