Building Trouble Shooting
Introduction and Subject matter four
Business Day: 22 April 2005
This column is brought to you by Peter Allsopp, former MD of the National Home Builders Registration Council and member of the Estate Agents Board 1996-2000, who is now in private practice providing trouble shooting and consumer protection services to Home Owners who are in difficulties with their homes.
This weeks article covers another of the most prevalent predicaments Home Buyers find themselves in, plans not being approved by the Local Authority
Regular readers will know that in our last column we dealt with the ever-present problem of undisclosed (latent) defects in a home just purchased and occupied. You will know that the best course of action is to employ the services of a specialist professional to undertake a housing medical to inspect for hidden defects BEFORE one signs the offer to purchase, or to make it a condition that the offer to purchase is subject to a successful inspection report.
Since then the Baobab enquiry desk has been inundated with calls regarding a similar, but slightly different problem experienced by seemingly innumerable home buyers, that of finding out that what has been built is very different from what has been approved on the drawings at the Local Authority.
Unfortunately we have also plenty of real-life examples of this very common phenomenon.
Do you remember Derek and Carol, the erstwhile purchasers of the leather and jasmine smelling house? Do you recall that Derek was looking forward to entertaining his mates in the pub room on the timber mezzanine deck above the lounge? What neither Derek nor Carol knew at the time of purchase was that this deck had been installed without building regulation and planning permission.
Now Derek, being an industrious type has submitted plans to the Council for the bedroom and office extension he has been talking about for the past two years. As a reader of this column, he does all the right things and employs a professional to draw up and submit his plans, then to draft proper contract documents and specifications. He is now three weeks into construction and the Council Inspector arrives to check out the extension. “But hang on he says, this here pub room ain't on your plans Mr. I'm sorry but I'll have to issue notice to you. You've got to get these plans in chop-chop!
As he leaves the site Derek is in a mixed state of emotion. His mates had said he could do the extension without plan approval in the first place. Now he is doing it all kosher, he his being nailed for something that was in the house when he first brought the place. What about the s**t that sold him the house? Isn't it his fault? What can he do to....... ANYBODY!
How did his dream house become a nightmare and how can you prevent this from happing to you?
It is an unfortunate but all-to-frequent occurrence, but it all comes down to one simple fact: Most South African buyers rely upon emotional and not factual information when purchasing that oh-so-beautiful home.
Get a specialist professional involved to help you; and we do not mean the Estate Agent. Remember the Estate Agent no matter how reputable and honest, is employed by the Seller. If the Seller does not disclose the fact that there have been extensions done without planning consent, the estate Agent is also unable to make such disclosure to you. In the June 2003 edition of the Agent magazine, issue by the Board, they stated:
"The estate agent is........Not the cause of the defect, cannot be blamed that the defect exists, not the owner of the property, a salesperson, not a construction expert, IS NOT EXPECTED TO WARRANT THE ABSENCE OF DEFECTS.
The same article also stated that "The code of conduct requires....... (An Agent to) Carry out a visual inspection: Be alert to defects which are reasonably apparent, disclose such defects to every potential purchaser, unless such defects are so obviously patent that the buyer would have noticed it himself.
Now we do not wish to be seen as Agent bashing, on the contrary we work in association with many reputable and expert Agents, however we are merely stating these facts to indicate what the average home buyer does not know and that is to get a balanced perspective on a house and its condition before purchase, one needs to employ the services of an INDEPENDENT and specialist construction/inspection professional. It is not difficult to search the archives at the Local Authority, any one can do it, but if you do not have the time or the ability to read plans, add this request to the pre-purchase inspection that the professional provides you.
We have been involved in a real case, where Derek's (real name withheld to protect the innocent) mezzanine floor WAS illegally built and where he had been issued summons to demolish or else! We have also been involved in many other similar cases, even where whole roofs have been built without any possibility of complying with National Building Regulations. We have even experienced two semi detached dwellings being completed without any form of legislative approval!
The National Building Act obliges all homes to be built according to National Building Regulations and SABS 0400, the application of the Building Regulations. However the onus of compliance is on the one person who is most unable to ensure compliance and that is the OWNER. Not the builder, the architect or even the Local Authority. Therefore at the point of sale of an existing property, the SELLER is responsible for compliance.
Our clients are not idiots; they are well qualified, mature human beings who have fallen into the trap of expecting problems like this to be disclosed at the point of sale. As the new OWNERS of the property it is correct that the Council can summon the buyers, now the Owners for non compliance. This could entail demolition of the un-approved portion of the property.
Once again, we can report that there is a silver lining in some cases. Remembering that prevention is better than cure, if it too late for you though, with the assistance of the correct professionals, the Buyer is able to take secondary action against the Seller for non-disclosure of the illegality of the property at point of sale, subject to certain conditions. In this respect Baobab Consultants have achieved more than satisfactory results in chasing down errant sellers and negotiating settlement agreements for its buyer-clients.
If you have any queries related to this or any other house construction or defective building product, please contact us, we may be able to answer your questions in future articles.