I spend most of my working week inside other people’s buildings. After a while you develop an eye for the gap between what a property is supposed to be and what it actually is — the room that appears on no plan, the carport someone’s uncle put up over a long weekend in 2004.
Usually it’s a nuisance. Occasionally it’s ruinous, and it tends to land on the people who thought they’d done their homework.
South Africa runs two entirely separate systems over the same piece of land, and neither one checks the other.
What you own, and what you may do
The first system is the deeds office. It records who owns what. Within its own terms it is rigorous and reliable.
The second is your municipality. It decides what may be built, how big, how close to the boundary, and whether what is already standing was lawful in the first place.
Buyers naturally assume that if something is properly registered it must be in order. That assumption is wrong, and it is wrong by design. The two systems were never built to check each other.
The right of extension
When a developer opens a sectional title scheme, it can reserve the right to add to it later — more units, another building, an extra floor. That is a real right of extension under section 25 of the Sectional Titles Act. It is registered. It can be mortgaged, sold and transferred on its own, separately from any unit in the scheme. People buy them for one reason: to build.
When the right is registered, plans are lodged with it. Section 25(2) calls for a plan to scale showing the siting, height and coverage of the buildings, the entrances and exits, the parking, the building restriction areas and the typical elevational treatment.
Read that list again. It is a footprint and an envelope. It is not a set of building plans, nobody has approved it, and the Act does not require anybody to approve it. The Registrar of Deeds files it.
So what does the Registrar check? That the paperwork is in order and that registration is permitted by law. The Registrar does not call for approved building plans. Nor a bulk calculation, a traffic report or an environmental authorisation. The Registrar does not ask the municipality anything at all.
Which means you can hold a Certificate of Real Right — properly issued, properly registered, giving you an undoubted right to extend the scheme — and still not be permitted to lay a single brick. Permission to build comes from somewhere else entirely: section 4 of the National Building Regulations and Building Standards Act, under which you may not erect a building without the prior written approval of the local authority.
One system tells you what you own. The other tells you what you may do with it.
The part that gets expensive
Your right relates to the new units. But a municipality assessing a building plan application looks at the property as a whole.
If what is already standing was built without approved plans, or does not match the plans that were approved, that is a live problem. Depending on what the unapproved work is and how it interacts with what you propose to add, it can sit between you and your approval.
The previous owner’s informal garage becomes your problem, years later, at a municipal counter.
This is not theoretical. Building without approved plans is a criminal offence and the courts treat it as one. In Lester v Ndlambe Municipality the Supreme Court of Appeal dismissed an owner’s appeal and upheld a demolition order against a second dwelling erected without approved plans, holding that a court has no discretion where demolition is sought under section 21 of the Act. A later judgment, BSB International Link, questioned parts of that reasoning — but in passing, and one judge, writing separately, said that Lester remained binding. The honest summary is that the risk is real and the outcome is not within your control.
The notarial tie
Where a building straddles the boundary between two erven, or where two erven are developed together, the properties are often notarially tied: a notarial deed registered against both titles recording that they cannot be sold separately.
It is then widely assumed, often by people who ought to know better, that a tie is as good as a consolidation — that the boundary effectively vanishes, the internal building line falls away, and development rules can be pooled across both.
I went looking for the rule that settles this. There isn’t one. No national statute says tied erven are a single land unit for planning purposes, and none says the opposite. The answer lies in your municipality’s land use scheme or planning by-law, and turns on how the particular control is worded — whether it is expressed per erf, per land unit, or per site.
Cape Town, where I work, answers it directly. Item 8(5) of the City’s Development Management Scheme provides that where legal steps are taken as contemplated in section 50(1) of the by-law, the development rules applicable to the zoning of each land unit remain applicable. Two erven, two sets of rules, tie or no tie.
That is a City of Cape Town provision. It is not a Western Cape rule and it is certainly not a national one. Other municipalities word things differently, and some schemes’ definitions may leave room to argue the other way when it comes to bulk.
What is safe to say is this. A notarial tie does not change the zoning of either erf, and you should never assume it pools development rules or removes an internal building line unless your scheme says so in terms. If someone tells you otherwise, ask which clause of which scheme they are relying on. If they cannot name it, they are guessing.
What to actually do
None of this requires you to become a planner. It requires you to ask different questions.
Get the approved plans for everything already standing. Not the architect’s drawings, not what the seller shows you — the set the municipality holds on file, with plan numbers. Then compare them to the building. Once you have the plans, it is the most useful hour you will spend.
Be warned that getting them is harder than it sounds. In Cape Town the City’s stated position is that only the registered owner or a duly authorised architect or draughtsperson will be given copies, which means a buyer needs the seller’s written co-operation — so build that into your offer. In Johannesburg the Metro Centre has been closed since September 2023 and much of the Development Planning archive has remained in the vacated building. Where no plan can be produced at all, having as-built plans measured, drawn and approved runs into tens of thousands of rand.
Ask for the occupancy certificate. Section 14 of the Building Act obliges a municipality, within 14 days of a written request by the owner or any person having an interest in the building, either to issue one or to notify the applicant in writing that it refuses. The cleanest route is to have the seller make the request and warrant the outcome.
Get a zoning certificate, and read the title deed. Zoning tells you what the scheme permits. Conditions in the title deed can defeat a development the zoning allows, and having one removed is a formal application with no guaranteed result.
Understand what voetstoots actually does. In Odendaal v Ferraris the Supreme Court of Appeal held that the absence of statutory approval for building work is a latent defect, and that a voetstoots clause ordinarily covers it and protects the seller. To get past such a clause you must show not merely that the seller knew and said nothing, but that the seller deliberately concealed it intending to defraud you. Knowledge plus silence is usually not enough, and the burden is yours. Two things cut the other way: where the seller sells in the ordinary course of business — developers, and people or trusts that trade in property — the Consumer Protection Act restricts reliance on voetstoots, and since February 2022 a seller working through an agent must provide a completed, signed disclosure form.
So bargain for warranties instead. A warranty does the opposite job. It is a positive promise that a stated fact is true, and if it proves false you sue on the promise — no need to prove knowledge, no need to prove fraud. Ask the seller to warrant the current zoning; that every structure was erected in accordance with plans approved by the local authority, with plan numbers listed and copies annexed; that occupancy certificates have been issued; that there are no contravention notices, enforcement directives or pending prosecutions; and that every title condition is disclosed. Then have your conveyancer state expressly that those warranties are carved out of the voetstoots clause. That carve-out is the load-bearing part. Without it, a voetstoots clause can be read as swallowing the warranty you just negotiated.
If the plans cannot be found in time, allocate the risk rather than ignoring it. Make the sale suspensive on their production by a named date, or have a sum retained in the conveyancer’s trust account to fund getting them drawn. These are commercial arrangements and the drafting is your conveyancer’s work — but missing plans are a negotiable cost, not an unavoidable gamble.
The short version
The deeds office will tell you, with great precision, exactly what you own.
It will not tell you whether you may build. Nobody at that counter has asked, and nobody there is going to.
Before you sign anything that depends on being allowed to build, go to the other counter and ask.
General information drawn from publicly available sources — not legal advice. Municipal rules differ and the detail above is current as at October 2026. On any actual transaction use a conveyancer, and where development rights are involved, a town planner.
