A property comes with more than its boundaries. The zoning and what it permits, the conditions registered against the title, every approval granted on it and every obligation those approvals carried — all of it transfers on registration. A buyer acquires less a site than a legal position, including the parts the seller never finished. A planning due diligence establishes that position. It sits alongside the legal, financial and environmental work a transaction may need, and covers what none of them do: whether the land may lawfully be used as it is, whether what stands on it was approved, and whether anything outstanding will fall to you.
A due diligence is worth most while something can still be done about what it finds. In our experience these are the four moments that call for one.
Before you sign, ask your attorney to make the planning position a condition of the offer — the zoning certificate, the approved plans and any approval letters, supplied by the seller within a set period. It costs nothing to ask for, and it puts the burden on the person who holds the documents.
Five findings account for most of what a due diligence turns up. Each can be priced, negotiated or resolved if it is found in time — and each becomes yours if it is not.
The offices, guest house or workshop the property is let for, operating without a consent or a rezoning. The income is real; the right to earn it is not.
A rezoning granted subject to charges, road widening or an SDP never satisfied. Either the obligation passes to you, or the property was never rezoned at all.
One dwelling only, residential purposes only — registered against the deed and never mentioned. It binds you from the day of registration.
A cottage, an enclosed patio, a second storey the approved plans do not show. The seller’s problem until transfer, and yours afterwards.
A right of way, a registered building line or a service route across the part of the site the development depends on. Invisible on the ground, decisive on the drawings.
Six areas, each established from source documents rather than taken on anyone’s word. What a buyer is told and what the record shows are frequently different.
The zoning as the scheme records it, the uses it allows and the parameters that limit what can be built — checked against the scheme, not taken from a certificate alone.
Every condition registered against the deed and every servitude and its position, read against what is on the property and what is planned for it.
Every rezoning, consent and departure granted on the property, read for what it was granted subject to — and checked for whether each condition was ever met.
The approved plans retrieved and compared with the buildings on site. Anything built and never approved is identified.
Contravention notices, complaints on file, and applications lodged but not yet decided — on this property and on those around it.
What the Spatial Development Framework and any precinct plan intend for the area. Land permitted one thing today may be earmarked for something else.
Findings are reported against what they mean for the transaction, not simply listed. Each is marked as something to price, something to make a condition of the sale, or a reason not to proceed — so your attorney can act on it inside the due diligence period rather than interpret it.
Five phases, run inside whatever period the offer allows. The order matters: the title and the zoning set what everything else is checked against.
The deed, its conditions and servitudes, and the zoning the scheme records — the baseline everything else is measured against.
Every approval granted on the property retrieved and read, with each condition checked against the record for whether it was met.
The approved plans compared with what stands, and the current use compared with what the zoning and approvals permit.
Notices, complaints and pending applications on the property and its neighbours, and the policy direction for the area.
Each finding graded — price it, make it a condition, or walk away — and delivered before the due diligence period closes.
Every row applies at registration, whether or not anyone mentioned it. The due diligence period is the last point at which any of it is the seller’s to resolve.
Modest against the transaction it protects. The fee turns on how much there is to establish and how quickly it has to be done. Four things move the figure.
A single erf, or a portfolio or assembled site of several portions. Each carries its own title, its own approvals and its own history.
One owner since proclamation, or a record of rezonings, consolidations and additions. Every approval has to be retrieved and its conditions read.
A review of the record alone, or the record compared with what stands. Only the second finds unapproved work.
A reasonable period lets the work run in sequence. A tight one means everything runs at once, which takes more people at the same time.
Set it against what you are about to pay. A finding made inside the due diligence period is a negotiation; the same finding after registration is a cost you carry alone. And where the report comes back clean, you have bought the one thing a seller’s assurance cannot give you — confirmation.
A clean due diligence usually leads to a feasibility. One that finds something leads to whichever application resolves it — most often one of the other three.
What buyers, sellers and their attorneys ask us before instructing one.
Send us the erf number and the date your due diligence period closes.
Send us the erf number and the date your due diligence period closes. We will tell you what needs checking, what is likely to matter most on this property, and whether the time you have is enough to do it properly. Initial consultations carry no obligation.
35 Fricker Road, Illovo, Sandton · Planning due diligence across the Gauteng City-Region