SPLUMA certificate 'not an SA-wide requirement
Category The Property Market
Confusion surrounds a 'new requirement' for the Spatial Planning and Land Use Management Act - with many in the industry panicked by a certificate that experts say is not a South Africa-wide requirement.
Reports have indicated that all municipalities would need to be SPLUMA (Spatial Planning and Land Use Management Act) compliant for this new certificate by October 2020.
SPLUMA is national legislation and already applies to all municipalities in South Africa - enabling municipalities to pass their own by-laws, as was the case when the Mbombela municipality included in its by-laws a provision that a certificate must be lodged with the deeds office for every transfer of property. Which is where the confusion has crept in.
The By-Laws of the other municipalities including Tshwane, Joburg and Cape Town only require the certificate when dealing with development land, as opposed to properties separately registered before, says Andrew Smith, Director of Denoon Sampson Ndlovu.
SPLUMA itself does not require any certificate other than for development land. If SPLUMA was to become an SA wide requirement, each Municipal By Law itself would need to be changed - and that in itself is unlikely, according to Property Law expert Allen West as certain Municipalities do not have By laws.
"The Deeds Registries Act 47 / 1937 can also not be amended as it provides for acts of registration and cannot prescribe what the municipal By Laws must provide for," says West.
'Tshwane Municipality not aware of it as a requirement'
West confirmed the Pretoria Deeds Office is also not aware of any decisions requiring any such certificate and that it is at this point only the Nelspruit Deeds Office that requires this certificate.
Nicolene Le Roux, Director: Development Compliance at the City of Tshwane confirmed to West the only certificate the Tshwane Municipality is obliged to issue in terms of SPLUMA is a Section 53 certificate.
However, this section is very specific in that it is required as a certification for purposes of registration transactions "resulting from a land development application".
"Normal sales and transfers do not result from a land development application," states Le Roux in an update shared with West.
'Section 53 certificate specific for land development'
According to Le Roux, nothing prevents Municipalities from changing this in terms of their Land Use Management by-laws as part of its Constitutional function of Municipal Planning.
"This would require confirmation of land use rights for purposes of opening/registering a sectional title scheme, especially on farm portions where township establishment may have been by-passed.
"This type of certificate will not be a SPLUMA certificate unless SPLUMA is amended OR unless, such confirmation of rights and building plans are included as a condition of approval for a land development, but this will only apply for purposes of a section 53."
'Originated with changes to Mbombela's By-Law'
Smith also confirmed, "To the best of our knowledge no such amendments are being considered anywhere else in South Africa.
"The need for the SPLUMA certificate, now being confused as a South Africa wide requirement, originated with changes to Mbombela's By-Law within the SPLUMA framework of empowering municipalities to make its own Town Planning By-Laws.
Smith confirmed the origins of the SPLUMA certificate saying on the 4th of March 2016 the Registrar of Deeds in Mpumalanga issued a Registrars Circular which provided that before any transfer was registered in that Deeds Office, a certificate in terms of its Section 70 was required.
He says, larger municipalities have drafted their own by-laws, but most smaller municipalities have adopted a reasonably standard set of by-laws.
'Reference did not include National Building Regulations'
"The Conveyancers in Nelspruit convinced the Mbombela Municipality that any such certificate should not include reference to the National Building Regulations, as this would mean every property would need to be inspected by the municipality before the requisite certificate could be issued by the municipality," says Smith.
"Further to this an owner must state in an affidavit that, inter alia, all development charges raised by the municipality have been paid, they understand the requirements of SPLUMA and of the Municipal by-laws with regard to permitted use of the land, and that the use of the land is not in conflict with these bits of legislation. How would the average seller even know all this? As indicated, it did not go so far as to suggest there are no encroachments on neighbouring properties and that the plans filed with the municipality are 'as-built' plans.
"These questions are raised for new developments and that really is what the intention of SPLUMA was all about," says Smith.
'Incorrect use of zones and lost plans'
Mike Spencer, Professional Associated Valuer of Platinum Global says the "requirements for the certificate include showing property is used for its proper zoning and that there is a full set of approved building plans, such as the swimming pool fencing is in place."
According to Spencer this in itself would be "a job and a half".
"Firstly, many people have done alterations to their properties without approved plans, many years ago. Just to get the plans approved and illegal buildings demolished is going to take an age and cost a fortune.
Spencer suggests it would also require "a professional architect to redraw your plans and have them approved. For many the problem will be that the building is legal but local authorities have lost the plans. Our local plans office at Mangaung Metro is in a shambles".
"Half the plans are missing for properties that were built 50 years ago," he says.
"While some good will come out of it like preventing the transfer of illegally used properties, the provision of approved plans alone is going to be a near impossible task."
Author: Property 24