Illegal Building Alterations

Illegal Building Alterations When Buying or Selling Property in South Africa

Illegal Building Alterations When Buying or Selling Property arise where additions, extensions, conversions or other building works on immovable property were undertaken without required municipal approval, contrary to approved plans, contrary to applicable zoning or land-use controls, or without an occupancy certificate where one is legally required.

The problem is more serious than a missing piece of paperwork.

An unapproved extension may affect the legality of the building itself. A converted garage may not lawfully be authorised for residential occupation. A second dwelling may conflict with the property’s zoning. A carport may cross a building line. A swimming-pool enclosure, entertainment area, loft conversion or additional room may differ materially from the approved municipal plans.

Section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (“NBRBSA”) provides that a person may not erect a building for which plans and specifications must be submitted without the prior written approval of the relevant local authority. The statutory definition of “erection” extends beyond construction of an entirely new building and includes alteration, conversion, extension, rebuilding, subdivision, additions and repairs to structural systems.

Not every small item of work necessarily requires the same plans or approval process. The National Building Regulations contain provisions dealing with minor building work, exemptions and municipal authorisation, and municipal by-laws may impose additional requirements. The correct question is therefore whether the particular alteration required approval under the legislation and municipal rules applicable to that property.

The issue becomes particularly important when property is sold.

Under the Property Practitioners Act 22 of 2019, a property practitioner may not accept a sales mandate without receiving a fully completed and signed mandatory disclosure form from the seller, and a copy must be provided to a prospective purchaser intending to make an offer. The completed document must ordinarily be attached to the sale agreement and forms an integral part of it. If it was not completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies were disclosed to the purchaser.

The prescribed 2022 disclosure form is especially important to Illegal Building Alterations When Buying or Selling Property because it expressly asks the owner to state whether additions or improvements to the property were made only after the required consents, permissions and permits had been properly obtained. The form also states that it is not a warranty and is not a substitute for inspections or warranties a purchaser may wish to obtain before contracting.

South African common law also remains relevant, particularly where the sale agreement contains a voetstoots clause.

In Odendaal v Ferraris, the Supreme Court of Appeal held directly that failure to obtain statutory approval for alterations can constitute a latent defect. The Court further held that such a defect can ordinarily fall within the protection of a voetstoots clause where the seller did not wilfully conceal it, subject to the important qualification concerning circumstances where the lack of statutory approval renders the property unfit for the purpose for which it was bought and sold.

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What Illegal Building Alterations When Buying or Selling Property Means

An alteration is not unlawful merely because the current owner cannot immediately find a copy of the plans.

The first task is to establish the actual municipal record.

A property may have old approved plans stored at the municipality that were never handed to the current owner.

Conversely, a seller may possess architectural drawings that were prepared by an architect but never approved by the municipality.

The existence of a drawing therefore does not prove approval.

The physical structure should be compared with the latest approved municipal plan.

Differences can include enclosed patios, additional bedrooms, carports, balconies, lapas, garages converted into rooms, cottages, second dwellings, enlarged kitchens, altered structural walls, swimming pools and extensions.

The distinction between a minor deviation and a material unauthorised structure matters.

Regulation A25 provides enforcement mechanisms where buildings have been erected without required approval. In particular, regulation A25(10) provides that where a non-temporary building is being or has been erected without the prior approval contemplated by section 4(1), the local authority must serve notice on the owner calling upon the owner to obtain the required written approval by a specified date.

This has a significant consequence for purchasers.

A person can buy a property containing an alteration constructed years earlier by someone else and later become the owner upon whom the municipality requires regularisation.

The fact that the purchaser did not personally construct the alteration does not magically convert the structure into an approved one.

The purchaser therefore needs to understand both the contractual risk against the seller and the public-law compliance risk involving the municipality.

They are separate questions.

Approved Building Plans and Municipal Approval

Section 4 of the NBRBSA is framed in mandatory language.

Where plans are required, construction must ordinarily be preceded by written municipal approval. The Constitutional Court confirmed in Walele v City of Cape Town that section 4(1) prohibits erection of buildings requiring plans without prior approval by the relevant municipality.

Approval is dealt with further under section 7.

Municipalities are not simply filing offices for architectural drawings. They perform a statutory building-control function and must evaluate applications according to the NBRBSA and associated requirements.

It is also important to distinguish building-plan approval from land-use approval.

An alteration might satisfy technical building requirements but conflict with zoning, building lines, coverage, height restrictions, title-deed conditions or another planning control.

In Berg River Municipality v Zelpy 2065 (Pty) Ltd, the owner had undertaken construction without approval and the municipality concluded that the submitted plans could not lawfully be approved unless the property first obtained the necessary rezoning.

A seller attempting retrospective regularisation may therefore discover that the problem cannot be solved merely by appointing a draughtsperson and submitting “as-built” plans.

Planning approval or relaxation may first be required.

In some cases the structure may physically need to be altered before approval can be obtained.

In extreme cases demolition may become necessary.

This is why a purchaser should be cautious where a seller says:

“The plans are not approved yet, but that is only an administrative issue.”

Sometimes it is.

Sometimes it is not.

Seller Disclosure and Illegal Building Alterations When Buying or Selling Property

The Property Practitioners Act materially strengthened the formal disclosure process in property transactions involving property practitioners.

Section 67 requires the property practitioner to obtain a fully completed and signed mandatory disclosure document before accepting a mandate and to provide it to a prospective purchaser intending to submit an offer.

The form must ordinarily be attached to the agreement and forms part of it. If no properly completed disclosure form was attached, section 67(2) directs that the agreement be interpreted as if no defects or deficiencies had been disclosed. A property practitioner who fails to comply with section 67(1) may also be held liable by an affected consumer, without excluding regulatory action by the Property Practitioners Regulatory Authority.

The prescribed condition report contains a particularly relevant declaration.

It asks the owner whether additions or improvements made to the property were undertaken only after all required consents, permissions and permits had properly been obtained.

A seller who knows that the enclosed patio, second cottage or garage conversion was constructed without approval should therefore take considerable care before answering the disclosure document.

The form itself defines awareness by reference to actual notice or knowledge and states that the seller’s answers are made to the best of the seller’s knowledge. It also permits prospective purchasers to rely upon the information when deciding whether and on what terms to buy.

The form is nevertheless not a substitute for buyer due diligence.

Regulation 36 expressly states that the report does not constitute a guarantee or warranty and should not be regarded as replacing inspections or warranties the prospective purchaser may wish to obtain. Section 67(5) likewise preserves the consumer’s ability to undertake an independent property inspection before finalising the transaction.

Accordingly, seller disclosure and buyer investigation should work together.

Voetstoots Clauses and Illegal Building Alterations When Buying or Selling Property

Many private residential sale agreements contain a voetstoots clause.

Broadly, this means the purchaser accepts the property in its existing condition and the seller excludes the ordinary common-law liability that would otherwise arise in respect of defects, subject to the legal limits applicable to such a clause.

The leading authority concerning unapproved building alterations is Odendaal v Ferraris.

The purchaser discovered that an outbuilding had not complied with the relevant conditions, plans for a carport had been rejected, the carport transgressed the building line and aspects of the garage did not comply with applicable regulations.

The SCA held that the absence of necessary statutory authorisation constituted a latent defect.

That conclusion is extremely important.

An unlawful structure does not have to be physically collapsing before it can amount to a defect. A legal deficiency affecting the improvement can itself constitute a latent defect for purposes of the law of sale.

However, the existence of the latent defect did not automatically defeat the voetstoots clause.

The SCA reiterated that a purchaser seeking to avoid the protection of a voetstoots clause must generally prove that the seller knew of the latent defect and deliberately concealed it with the intention to defraud. Fraud is not lightly inferred.

This reflects the traditional principles associated with Van der Merwe v Meades, which remains a leading authority on fraudulent concealment of latent defects. Later courts continue to recognise that the buyer must establish both the seller’s knowledge and the necessary deliberate concealment where the buyer seeks to defeat a voetstoots clause on this basis.

The factual evidence therefore becomes critical.

Did the seller construct the alteration personally?

Did the municipality previously reject plans?

Did the seller receive municipal contravention notices?

Did an architect tell the seller that the work was unapproved?

Did an earlier purchaser raise the issue?

Did the seller falsely state that approved plans existed?

Did the seller complete the mandatory disclosure document by positively representing that permits were obtained?

These facts may be far more important than the mere existence of the voetstoots clause.

What Buyers Should Check Before Transfer

The safest time to resolve building-plan problems is before concluding an unconditional sale or before transfer, not after the purchaser becomes owner.

A prospective purchaser should compare the actual property with the approved municipal plans.

Where the property has been substantially altered, professional assistance from an architect, architectural technologist, building inspector or other appropriately qualified professional may be appropriate.

The purchaser should determine whether there are approved plans for all material structures and whether the physical building corresponds sufficiently with them.

The purchaser should also ask whether the municipality has issued contravention notices, whether retrospective applications are pending and whether any departure, rezoning, consent use or building-line relaxation is required.

The Property Practitioners Regulations themselves warn purchasers not to treat the mandatory disclosure report as a substitute for inspections or warranties.

The sale agreement should then deal with any identified problem expressly.

A purchaser who wants approved plans before becoming owner should not rely merely upon an estate agent’s statement that “the seller will sort it out”.

The agreement can make production or approval of specified plans a contractual requirement.

Depending on the intended structure, this might be framed as a suspensive condition, an obligation that must be fulfilled before transfer, or another carefully drafted contractual mechanism.

The agreement should identify who pays the architect, municipal fees, penalties, land-use applications and physical remedial work.

It should also address what happens if retrospective approval is refused.

A clause requiring merely that the seller “submit plans” is materially weaker than a clause requiring the seller to obtain final municipal approval.

Submission does not guarantee approval.

Municipal Enforcement and Illegal Building Alterations When Buying or Selling Property

Municipal enforcement can become the purchaser’s practical problem even where the seller originally caused the contravention.

Regulation A25(10) directs the local authority to require the owner of a building erected without section 4 approval to obtain the necessary approval.

The NBRBSA also creates more serious enforcement powers.

Section 21 empowers a court, on application by the local authority or Minister, to prohibit unlawful construction or authorise demolition where the statutory requirements are satisfied.

The Supreme Court of Appeal’s decision in Lester v Ndlambe Municipality illustrates the seriousness of that remedy. The case concerned a building erected without approved plans, and the SCA emphasised the doctrine of legality when considering demolition under section 21.

In BSB International Link CC v Readam South Africa (Pty) Ltd, the SCA similarly dealt with a building erected without the required prior approval and confirmed the unlawfulness of construction conducted contrary to section 4.

More recent litigation confirms that these statutory powers remain practically relevant. In City of Tshwane Metropolitan Municipality v Asaba, decided in May 2026, the Gauteng High Court again dealt with unlawful structures and the municipality’s enforcement powers under sections 4 and 21.

A purchaser should therefore not assume that an alteration becomes safe from enforcement because it has existed for many years.

The legal position must be investigated rather than inferred from municipal inactivity.

Nor should a purchaser assume that retrospective approval is guaranteed.

Berg River Municipality v Zelpy illustrates that where the structure conflicts with planning requirements, approval may first require another land-use process and may not necessarily be available in its existing form.

Occupancy Certificates and Unapproved Alterations

Approved plans and occupancy certificates perform different functions.

Section 14 of the NBRBSA regulates certificates of occupancy.

The local authority must issue a certificate after completion where it is satisfied that the building was erected in accordance with the Act and the conditions on which approval was granted and that the required certificates have been supplied.

The Act therefore connects occupation certification to compliance with the approved building process.

The SCA confirmed this relationship in Rehau Polymer (Pty) Ltd v Brunettes Electrical (Pty) Ltd, explaining that section 14 requires the municipality to be satisfied that the building was erected in accordance with the Act and the relevant approval.

In Berg River Municipality v Zelpy, the court prohibited occupation or use of unlawfully erected structures until an occupancy certificate or statutory permission was obtained.

Similarly, Crimson Sunset Property Bantry Bay v City of Cape Town recognised that occupation without the required section 14 certificate or temporary permission could be unlawful in the circumstances before the Court.

Not every historical alteration will necessarily require a completely new certificate in precisely the same manner, and the applicable municipality should be consulted regarding the specific building.

However, purchasers should not treat an electrical compliance certificate, beetle certificate or other transfer-related certificate as proof that the entire building complies with approved municipal plans.

Those documents regulate different legal subjects.

Remedies When Illegal Building Alterations Are Discovered After Transfer

The purchaser’s remedy depends upon the agreement, the seller’s knowledge, representations made before sale, the nature of the defect and the law applicable to the transaction.

A buyer cannot assume that discovery of an unapproved alteration automatically entitles the buyer to cancel the sale.

If there is an enforceable voetstoots clause, Odendaal v Ferraris becomes particularly important.

The absence of statutory approval may constitute a latent defect, but the voetstoots clause can protect an innocent seller who did not fraudulently conceal the problem.

Where the seller knew of the illegality and deliberately concealed it with fraudulent intent, the seller may lose the protection of the voetstoots clause. The purchaser will need evidence capable of proving the seller’s knowledge and dishonest concealment.

The purchaser may also have contractual rights where the sale agreement contains express warranties.

For example, the seller may have warranted that all buildings were erected according to approved plans or that no municipal contravention notices existed.

Breach of that warranty is a different legal basis from attempting to overcome a general voetstoots clause.

Misrepresentation may likewise create remedies where a material false statement induced the purchase.

The appropriate relief can potentially include damages, reduction of the purchase price, cancellation in sufficiently serious circumstances or another contractual remedy, depending upon the cause of action and facts.

The cost of retrospective compliance may be relevant to damages but should not be assumed to be the only legally relevant loss.

A property may require demolition, physical rebuilding, land-use approval or loss of rentable floor area.

Expert evidence may therefore be necessary to determine the actual consequences.

The Consumer Protection Act and Property Sales

The Consumer Protection Act 68 of 2008 can materially change the legal analysis where it applies.

The CPA’s statutory definition of goods includes a legal interest in land or immovable property, and sections 55 and 56 create consumer rights concerning quality and defects in transactions falling within the Act.

However, not every private sale of a home is automatically governed by those provisions.

The CPA regulates supplies made in the ordinary course of the supplier’s business, subject to the Act’s application and exclusions. A once-off private homeowner selling a personal residence ordinarily occupies a different position from a property developer or person selling immovable properties in the ordinary course of business.

The Western Cape High Court’s decision in Daverveldt v Kromhof illustrates a property transaction in which it was alleged that the seller bought and sold immovable property in the ordinary course of business and the CPA therefore formed part of the defects dispute.

Where the CPA applies, a conventional voetstoots provision cannot simply be analysed as though the common-law regime were the only relevant legal source.

Sections 55 and 56 and the statutory restrictions on attempts to contract out of consumer rights must also be considered.

The correct approach is therefore to determine the nature of the seller and transaction before assuming either that the CPA applies or that it does not.

Drafting for Illegal Building Alterations When Buying or Selling Property

A carefully drafted sale agreement can prevent substantial disputes.

Where the seller knows that alterations are not approved, the contract should say so expressly.

It should identify the relevant structures rather than rely upon vague language such as “some plans may be outstanding”.

If the purchaser agrees to assume responsibility for regularisation, the economic consequences should be reflected in the purchase price and contractual allocation of risk.

If the seller must regularise the property, the required outcome should be defined.

There is a material difference between:

“The seller will apply for plans.”

and:

“The seller must, at its cost, obtain final written municipal approval of plans accurately reflecting the existing dwelling before transfer.”

The first requires an application.

The second requires a result.

The agreement should address what happens if approval requires physical alteration, demolition, a land-use application or neighbour consent.

Time limits should be specified.

The parties should consider whether transfer is suspended pending approval or whether funds are retained under a carefully structured arrangement.

The disclosure document should also be completed accurately.

Section 67 has made seller disclosure a statutory component of property-practitioner transactions, while regulation 36 specifically asks about whether additions and improvements received required consents and permits.

A seller should therefore avoid simply ticking “no defects” because the property appears physically sound.

Legal compliance can itself be relevant to the condition and value of the property.

Conclusion: Illegal Building Alterations When Buying or Selling Property

Illegal Building Alterations When Buying or Selling Property should be treated as both a contractual problem and a municipal compliance problem.

Section 4 of the NBRBSA requires prior municipal approval where the relevant work requires plans. The Constitutional Court in Walele confirmed the mandatory nature of that approval framework.

The National Building Regulations allow municipalities to require owners to obtain approval for buildings erected without the necessary prior approval, while section 21 creates potentially serious enforcement consequences, including demolition proceedings.

The property-sale consequences are equally important.

Odendaal v Ferraris confirms that a lack of statutory approval can constitute a latent defect. It also demonstrates why a voetstoots clause remains important: an innocent seller may still receive its protection, whereas a seller who knowingly and fraudulently conceals the defect may not.

The Property Practitioners Act now adds an express disclosure regime.

Section 67 requires the mandatory disclosure form in transactions conducted through property practitioners, and the prescribed form specifically requires disclosure concerning whether additions and improvements were made after obtaining necessary consents, permissions and permits.

For purchasers, the safest approach is to verify the plans before taking the risk.

For sellers, the safest approach is to regularise known problems or disclose them accurately and allocate responsibility expressly in the sale agreement.

A purchaser should not assume that because a building has stood for fifteen years it must be legal.

A seller should not assume that because the property is being sold voetstoots, known unapproved alterations can safely be left undisclosed.

What Are Illegal Building Alterations When Buying or Selling Property?

They are alterations, extensions, conversions or additions that do not comply with the required municipal building approval, approved plans, land-use rights or other applicable statutory requirements.

Section 4(1) of the NBRBSA prohibits erection of a building requiring plans without prior written municipal approval.

Is It Illegal to Build Without Approved Building Plans?

Where the NBRBSA and applicable regulations require plans, yes.

Section 4(1) requires prior written approval.

Whether a particular minor alteration requires full plans or another form of municipal authorisation depends upon the nature of the work and applicable regulations.

Can a House Be Sold With Unapproved Building Plans?

The existence of unapproved work does not itself answer whether a sale agreement can validly be concluded.

However, it creates material contractual and public-law risks that should be addressed expressly.

The purchaser may become the owner required to deal with municipal regularisation or enforcement after transfer. Regulation A25(10) specifically directs the municipality to call upon the owner of a building erected without required approval to obtain approval.

Must a Seller Disclose Unapproved Building Alterations?

Where a property practitioner is involved, section 67 of the Property Practitioners Act requires a prescribed mandatory disclosure form.

The prescribed form expressly asks whether additions or improvements were made only after required consents, permissions and permits were properly obtained.

Common-law fraud and misrepresentation principles may also create consequences where known defects are deliberately concealed.

Does the Mandatory Disclosure Form Guarantee the Property?

No.

Regulation 36 expressly states that the prescribed condition report is not a guarantee or warranty and should not replace inspections or contractual warranties a purchaser wishes to obtain.

What Happens If No Mandatory Disclosure Form Was Attached?

Section 67(2) states that if the form was not completed, signed or attached as required, the agreement must be interpreted as though no defects or deficiencies were disclosed to the purchaser.

A property practitioner who fails to comply with section 67(1) may also potentially be liable to an affected consumer.

Is an Unapproved Building a Latent Defect?

It can be.

In Odendaal v Ferraris, the SCA held that failure to obtain necessary statutory authorisation for alterations constituted a latent defect in the property.

Does a Voetstoots Clause Protect the Seller?

Potentially.

Odendaal confirms that a voetstoots clause may cover an undisclosed lack of statutory approval where the seller did not wilfully and fraudulently conceal the defect.

The precise agreement and facts remain critical.

Can a Seller Hide Behind Voetstoots If They Knew About the Illegal Alterations?

Not where the buyer proves the requirements for fraudulent concealment.

The purchaser generally needs to show that the seller knew of the latent defect and deliberately concealed it with the intention to defraud.

Can the Municipality Force the New Owner to Submit Plans?

Yes, potentially.

Regulation A25(10) provides that where a building has been erected without the prior approval required by section 4(1), the local authority must serve notice on the owner calling for the required approval by a specified date.

Can a Municipality Demolish an Illegal Structure?

Potentially, following the applicable statutory and court process.

Section 21 permits the municipality or Minister to seek a court order prohibiting unlawful construction or authorising demolition.

Lester v Ndlambe Municipality demonstrates that demolition under section 21 can be a real consequence of unlawful building work.

Can Retrospective Building Plans Always Be Approved?

No.

Approval depends upon compliance with the NBRBSA, building regulations, planning controls and other applicable law.

Berg River Municipality v Zelpy demonstrates that retrospective plans may encounter underlying zoning problems that prevent approval unless separate planning rights are first obtained.

What Is an Occupancy Certificate?

Section 14 provides for the municipality to issue a certificate of occupancy once it is satisfied that the completed building complies with the Act and the conditions attached to approval and that required certificates have been submitted.

It should not be confused with approved building plans or other certificates such as an electrical compliance certificate.

Should Buyers Ask for Building Plans Before Signing?

Yes, particularly where the property contains substantial extensions, outbuildings, converted garages or other obvious alterations.

The Property Practitioners Regulations expressly state that the disclosure document is not a substitute for inspections or warranties a purchaser may wish to obtain.

Where approved plans are important to the purchaser, the sale agreement should deal with them expressly.

What Should a Buyer Do If Unapproved Alterations Are Discovered Before Transfer?

The buyer should determine exactly which structures are affected and obtain municipal and professional advice concerning whether they can be regularised.

The sale agreement should then be reviewed to determine whether the seller is already obliged to provide approved plans and what remedies follow from non-compliance.

The buyer should avoid accepting an informal promise that approval will be obtained later if municipal compliance is commercially important to the purchase.

What Can a Buyer Do If Illegal Alterations Are Discovered After Transfer?

Possible remedies depend upon the sale agreement, any warranties or representations, the seller’s knowledge, the presence of a voetstoots clause, whether fraudulent concealment occurred and whether the CPA applies.

Odendaal is particularly important where the dispute concerns a voetstoots sale and previously undisclosed lack of statutory approval.

Does the Consumer Protection Act Apply to Property Sales?

It can.

The CPA includes interests in immovable property within its statutory framework for goods and can apply where the supplier sells property in the ordinary course of business, subject to the Act’s application provisions and exclusions.

A once-off private residential sale should not automatically be treated in the same manner as a sale by a property developer or professional property trader.

References

Useful Links

South African Government – National Building Regulations and Building Standards Act 103 of 1977 provides the official legislation underlying building-plan approval, municipal building control and occupancy certification.

South African Government – Property Practitioners Act 22 of 2019 provides the statutory consumer-protection framework applicable to property practitioners, including the mandatory disclosure requirement in section 67.

Southern African Legal Information Institute – Odendaal v Ferraris provides the leading SCA judgment dealing specifically with unapproved building alterations, latent defects and a voetstoots clause.

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