Transcript 1.4 Building Plans Seminar
“ I MC ade my
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 Work together Architects Surveyors Town planners Conveyancers Agents
Purpose of seminar
1.
2.
3.
Hear from experts – other fields Answers on FAQ Give direction future
Sonja du Toit
Director at M.C. van der Berg Incorporated Attorney, Conveyancer & Notary
Skills & Expertise
Conveyancing Property Law Commercial Contracts Sectional Title Development Township Establishment Notarial Work
Education
University of Pretoria LLB (Cum Laude), 1999 - 2000 University of Pretoria BLC (Cum Laude), 1996 - 1998
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?
1. Definition of property ito common law:
Ground Structures attached thereto
2. Shortcoming of the definition
no ownership of “flat”
3. Solution to the problem
Previously: share block schemes Sectional titles act
2. Differences between sectional title and full title Full title
Owner of erf and structures attached thereto Owner of the unit & undivided share in common property
Sectional title
No body corporate Body corporate – all owners are members Can improve the property with approved building plans Consent by body corporate, building plans and new sectional title plans for improvements Rates & taxes and consumption of water & electricity payable to local municipality Rates & taxes and consumption payable to local municipality
PROPERTY INFORMATION Property Type Erf Number Portion Number Township Local Authority Registration Division Province Diagram Deed Extent Previous Description LPI Code
ERF 776 15 CLUBVIEW EXT 39 CITY OF TSHWANE METROPOLITAN MUNICIPALITY JR GAUTENG T86055/1994 639.0000SQM
T0JR00370000077600015
PROPERTY INFORMATION Property Type Unit Scheme Name Scheme Number/Year Situated At Local Authority Registration Division Province Diagram Deed Extent Previous Description LPI Code
SECTIONAL TITLE UNIt 1 SS SNEAD MANOR 134/2008 CLUBVIEW EXT 90 , 1095 , 0 CITY OF TSHWANE METROPOLITAN MUNICIPALITY JR GAUTENG 151.0000SQM
T0JR00370000109500000,D553/2007
Example:
93 ÷ 231 = 0,402597 x 100 = 40,2597 138 ÷ 231 = 0,597403 x 100 = 59,7403
If levies are R5 000 per month:
Unit 1 pays: R5 000 x 40,2597% = R2 012,98 Unit 2 pays: R5 000 x 59,7403% = 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
1. Unit 2. Section 3. Common property 4. Exclusive use ( sect 27) 5. Right to extend
1.
Unit: 2.
Section = house Section + undivided share in common property
2.
Common property: Areas surrounding unit
3.
Exclusive use ( sect 27) in terms of notarial deed of exclusive use in terms of rules Real right can be bonded cannot be bonded
4. 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
Managing Member of Velocity Townplanning & Project Management
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) 1991-1994 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)
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
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?
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
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.
-
Policies
Uses Densities, etc 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 Residential 2 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
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 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 = ± R100 000-00
Consent Use Application
When?
rezone consent use application Is not a permanent right. A Consent Use application Town Planning Scheme.
in terms of the relevant
Removal Application of Restrictive Conditions
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
Includes the following: • Landuse • Coverage • Density • Floor Area Ratio or FAR (FSR) • Height • Parking Requirements • Building Lines
Land Surveyor
Eamon Swart
Skills & Expertise
Township Establishment Sectional Title Practitioner Replacement of Erf Beacons
Education
University of Pretoria BLandm (Cum Laude), 1988 - 1992
S V R Land Surveyors 246 Willem Botha Wierda Park 012 654 9769
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 (City Council) 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
Owner – KAROH ARCHITECTURAL DESIGN STUDIO Senior Professional Architectural Technologist
SKILLS AND EXPERTISE
Residential property design Commercial property design Industrial property design Project Management Quantity estimation
EDUCATION
Technical College SA Nat. Tech. Dipl. (Construction & QS) QBE
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 6 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 2. Finalizing of plans & documents, signatures 3. Submission to Council 4. Approval by Council 1-4 weeks 1-4 weeks 1-5 days 4-8 weeks
Process of approval at Council
1 2 3 4 5 6 7 Submission of documentation and plans to Building office Registration by building office On site inspection by building inspector Scrutinizing of plans by Plan examiner Geology Transport Water & sanitation
8 9 10 11 12 13 14 15 Health Electricity Fire Town Planning Roads & storm water Subdivision & consolidation Property Services Finance Occupation certificates
Cost of plan approval
Example eg. 80m² addition not yet on plans Professional fee (3,5 -7,5% of contract value or rate per m²) Buildingline & height relaxations Plan copies, documents and preparation Appointment of engineer Submission to Council (80m² @ R11 per m²) Other applications to Council (Relaxations @ fire) Administrative fee for runner Council submission fees 11.00/m² with a minimum fee of R 440.00 Additional fees R 8 000.00
R 1 000.00
R 500.00
R 880.00
R 1 500.00
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 2 3 New house 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 NHDP Building Management Skills & Experience 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 1 Akasia 2 Sinoville 3 4 5 Pretoria Centurion Cullinan Central & West Office Manager 6 7 Pta East Kungwini
Chief plan examiner Architect Office Manager Chief building Inspector (Dougie Donald) 6 Building inspectors 6 Zones in Centurion 1 Law enforcement Officer
Duty of Building Control Office
Building industry + All buildings in Tshwane are built according to National Building regulations RSA Town planning scheme 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 Centurion Tshwane 2008 New Town planning scheme
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
3.4
3.5
3.6
Roof Open drain Final drain Final building
4. Certificates • Engineers 5.
• • • Glazing (glass) Electric Plumber Occupational certificate Foundation Stairs Slab Roof
Owner uncertain
• Building plans Anyone inspect (seller / purchaser / agent) No copies Building office Centurion Pretoria Akasia c/o Basden & Rabie streets Centurion across Munitoria Isivono building 6649 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 Excuse enforce against current owner ignorance!
NO
No prohibition to transfer?
Banks?
Possible future legislation
Advice
•
Sellers:
1.
2.
3.
Make sure if plans are in order 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
Director at M.C. van der Berg Incorporated Attorney, Conveyancer & Notary
Skills & Expertise
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, 1991 - 1992 BLC, 1988 - 1990
Framework
1. The problem 2. Can MC (your attorney) transfer property 3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
1. The problem
1. Building plans generally not in order 2. Sectional plans not updated 3. Insurance 4. Home Owners Association 5. Banks may require 6. Purchaser may require 7. Future legislation 8. Estate agent wants to earn a living 9. Not one solution 10. Estate agents approach can differ
Framework
1. The problem 2. Can MC transfer property 3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
2. Can MC transfer property?
Any prohibition to transfer property?
• • • • Building plans Sectional plans Zoning Occupational certificate not in order In other words: A. Statutory prohibition?
B. Contractual stipulation?
C. Bond condition?
2. Can MC transfer property?
A. Statutory prohibition?
• currently none • future legislation?
2. Can MC transfer property? 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?
2. Can MC transfer property?
B. Contractual stipulation?
• Condition vs warrantee • Warrantee - Add clause to contract “seller warrantees that plans are in order” Obligation on Seller: - Sidestep defect issue ? If not Purchaser cancels Lower purchase price Purchaser enforces warrantee
2. Can MC transfer property? C. Bond condition?
• Contract subject to bond • Bank requires Seller can Building plans Sectional plans Zoning Occupational certificate Comply with request Suspensive condition not fulfilled Bond only conditionally approved Therefor no transaction Legal status of bond?
Only conditional
Framework
1. The problem 2. Can MC transfer property?
3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
3. Obligation to disclose – Seller?
• • • • Zoning Building plans Sectional plans Occupational certificate not in order Must seller inform purchaser?
A. Statutory obligation to disclose?
B. Common law obligation to disclose?
A. Statutory obligation to disclose
•
Consumer Protection Act
YES seller must disclose
Transaction = CPA compliant
Seller • Developer • Bank • Speculator If not disclosed statutory warrantees or Purchaser can Reduce purchase price Right to cancel
Transaction = Not CPA compliant
• Typical transaction NO obligation on seller to disclose NO statutory warrantees
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 Building plans Sectional plans Zoning Occupational certificate 24 April 2013 Contract concluded Common Law Patent / Latent defects Regulate position
Definition A. Patent vs Obvious vs B. Latent Hidden
A. Patent defect
Patent defect is visible or visible with reasonable inspection Zoning Building plans Sectional Title plans Zoning certificate City council 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
B. Latent defect… If legal defect = latent
Common Law As general rule Seller Warranty
There is no latent defects
!
seller is liable for latent defects Purchaser
BUT
Voetstoots (as is) reverses position Voetstoots clause excludes / cancels warranty Most estate agent’s contracts Warranty
There is no latent defects
!
If Voetstoots If Voetstoots no warranty against latent defects Latent defect = purchaser’s problem
UNLESS
Seller 1 Knew of latent defect 2 Fraudulently & • • Deliberately conceals existence To move seller to buy If purchaser can prove 1 + 2 seller’s problem *Onus of proof on purchaser * Very difficult to prove
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 Voetstoots clause protects seller Physical defects 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
Framework
1. The problem 2. Can MC transfer property?
3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
4. Obligation to disclose – agent
Agent
CPA Seller No duty to ascertain any defects CPA Purchaser Patent Latent But: If agents are aware must disclose (EAAB code of conduct) Don’t give oral warranties Advice: Purchaser must inspect properly
Framework
1. The problem 2. Can MC transfer property?
3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
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
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 o Purchaser is protected Risk of cancellation Cannot register
Framework
1. The problem 2. Can MC transfer property?
3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
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
1. Not a legal requirement 2. Not a list of contractual warranties 3. Not a list of patent defects 4. Not a list of all latent defects 5. Is a list of latent defects seller is aware of 6. Purchaser acknowledges receipt 7. Make provision building plans sectional plans zoning 8. Protects agents
Framework
1. The problem 2. Can MC transfer property?
3. Obligation to disclose - seller 4. Obligation to disclose – agent 5. Where does this leave purchaser?
6. Your dilemma 7. Our advice
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 2. Advise purchaser to o inspect at city council / deeds office o require warrantee all improvements comply with statutory and building regulations 3. Protect yourself as agent o Don’t give oral warrantees to purchaser about plans o Advise purchaser to inspect o Use property report