Feature Article of Saturday, 1 August 2015
Columnist: Mate-Kole Essuman
By
Emmanuel Mate-Kole, Esq.
Kow Essuman, Esq.
INTRODUCTION
This short article focuses on the legal framework regarding unauthorized buildings in Ghana. The laws that we will consider in our discussion include the Towns Act, 1892 (Cap 86), Local Government Act, 1993 (Act 462) and National Building Regulations, 1996 (LI 1630). We do not intend to delve into the engineering aspect of putting up a safe and sound building, or the processes involved in obtaining the requisite permit for building. There is a widely held perception that once you obtain a building permit, you are licensed to put up whatever property you want on your land. In other words, all you need is a building permit to build – end of story. This widely held perception is wrong and we shall seek to correct it in this article.
The issue of unauthorized buildings is nothing new; however, it seems to be discussed only when there is a tragedy. After the June 3 floods, the issue of unauthorized buildings was heavily discussed as one of the main causes of the flooding. Indeed, the city authorities commenced a series of building inspection and destruction. The issue of unauthorized buildings reared its head again after the widely reported building collapse last weekend, in Cantonments that led to a number of people losing their lives.
WHAT IS AN UNAUTHORIZED BUILDING?
An unauthorized building is a building (i) occupied by a person who does not have the requisite permit, or (ii) being constructed by a developer who lacks a permit, or (iii) when the owner, occupier or developer builds outside the scope of the permit. Our laws (both the Towns Act and the Local Government Act) prohibit the construction of unauthorized buildings. Yet, we find many of such buildings in our towns and cities, and no step is taken in respect of these unauthorized buildings until a tragedy occurs. Where a building falls within the definition of an unauthorized building, the District Planning Authority (“Authority”) has the power to remove, alter or pull down the building.
PENALTIES FOR AN UNAUTHORIZED BUILDING
After identifying the unauthorized building, the Authority may give notice in writing in a form prescribed by the law to the owner, occupier or developer of the building. The notice will require the owner, occupier or developer to provide the Authority, within a specified time, with a statement in writing signed by the owner, occupier or developer or his/her duly authorised representative. [The form of the notice is discussed in the next section.] The written statement must explain why the building, structure or work should not be removed, altered or pulled down.
If the owner, occupier or developer fails to comply with the notice within the specified time, the Authority may carry out the removal, alteration or pulling down, and recover the expense of the removal, alteration or pulling down from the owner, occupier or developer, as if it were a debt due from that person to the Authority. And since it is a debt, the Authority may commence legal proceedings to recover it.
The Towns Act further prescribes that the offending party’s building materials obtained from the demolition exercise can be sold and the proceeds applied in payment of the expense incurred by the District Planning Authority in removing the unauthorized structure. It is interesting to note that the Towns Act, which was passed in 1892, is still on our statute books and appears to be one of our stricter laws when it comes to the regulation of towns and promoting public health. Sadly, it only applies to the towns, places and areas specified in the First Schedule to the Act. These places and areas are the Accra District, Ada District, Ahanta-Nzema District, Akwapim-New Juaben District, Birim District, Cape Coast District, Ho District, Keta District, Saltpond District, Sefwi Aowin District, Volta River District, Wasaw District, Western Akim District and Winneba District. Thus, if you live in any of these towns, places or areas, you will have to comply with the Towns Act and the Local Government Act. The Local Government Act applies to all other areas not listed in the First Schedule to the Towns Act.
There are a few distinctions between the Towns Act and the Local Government Act. The main distinction lies in the fact that the Towns Act imposes stiffer penalties as against the Local Government Act. For instance, a person who breaches the Towns Act is liable on summary conviction to a fine of Sixty Thousand Cedis (GHS60,000) and in the case of a continuing contravention, to a further fine of One Thousand, Two Hundred Cedis (GHS1,200) for each day that the contravention continues. Meanwhile, the Local Government Act imposes a fine of Two Thousand Four Hundred Cedis (GHS2,400) or a term of imprisonment not exceeding six months or to both the fine and the imprisonment, and in the case of a continuing offence to a further fine not exceeding Twelve (GHS12) for each day that the breach continues after written notice has been served on the offender.
“STOP WORK, PRODUCE PERMIT”
The Authority has the responsibility of ensuring that persons do not construct buildings in breach of the law and may issue periodic notices to such persons. What we often see written on walls around our towns and cities, “Stop Work, Produce Permit”, are not compliant with the law. The law requires the Authority to give notice in writing in accordance with the form set out below:
“TO … [name of owner, occupier or developer]
TAKE NOTICE THAT you are hereby required on or before the day of [Month], 20* by a statement in writing under your hand or the hand of some person duly authorised in that behalf by you and served upon the District Chief Executive to show cause, why (a)… [building, structure + location], which has been constructed/executed in contravention of (b) … [the relevant section of the law], should not be … (c) … [proposed action by Authority – removal, alteration, pull down].
Dated this day of [Month], 20*
District Chief Executive or Other Officer”
HOW TO AVOID PUTTING UP AN UNAUTHORIZED BUILDING
The National Building Regulations, which was passed pursuant to the Local Government Act, sets out certain procedures a person must follow before building, making structural alterations to a building or executing any works or installation of any fittings in connection with any building. The procedures are as follows:
(a) The person must have a land title certificate if the area is in a registration district such as Accra, Kumasi, Tema and Winneba; and if the area is in a non-registration district, the person’s deed must be registered.
(b) The building plans must be submitted alongside the title deeds and they must give details of the sections, elevations, calculations, drawings and specification of materials to be used for the proposed building among other things.
(c) If the person intends to build in a metropolitan or urban area, the building must be designed by an architect, acting in consultation with a civil engineer, a structural engineer, and a professional builder (this excludes draughtsman, a licensed building surveyor, a building technician with a qualification lower than a higher technician diploma).
The Authority must acknowledge receipt of an application for building permit within seven (7) days of receipt and must communicate its decision (granted or refused) on the application to the person within three (3) months. If a person is not informed of the grant or refusal of his/her application after three (3) months has lapsed, the person may commence development on the basis that the application is acceptable to the Authority. A building permit is usually valid for a period of five (5) years and can be renewed upon expiry.
AFTER OBTAINING THE BUILDING PERMIT
Although, a building permit gives a person the right to commence building, he/she must, at all time in the building process, involve the Authority. The National Building Regulations provide that a person to whom a building permit has been issued to build and who has proceeded on the basis that the application is acceptable to the Authority must notify the Authority at least within forty-eight (48) hours of his/her intention to commence work. The person must also notify the Authority of the dates on which the following stages of construction will be ready for inspection by the Authority:
• Demarcation of site of the plot and siting of the buildings;
• Foundations of buildings set out;
• Foundations excavated and level pegs for concreting;
• Foundations concreted;
• Trenches for drainage work excavated to levels and gradients;
• Drains laid and joined and ready for testing;
• Reinforcing steel fixed in position before concreting;
• Concrete shuttering ready for striking;
• Walls completed to wall-plate level; and
• Roof framework completed before covering.
None of the above stages of construction should be covered until it has been inspected and approved by the Authority. If the above stages of construction are not inspected, the Authority can serve notice on the owner of the building to cut into, lay open or pull down as much of the building work as may be necessary to ascertain whether any of the provisions may have been complied with and if such notice is not complied with, the Authority can apply to the courts for an order to cut into, lay open or pull down any part of the building or work in order to carry out any tests necessary to ascertain whether the law has been observed.
It is instructive to note that this is the only circumstance under which the power of a magistrate can be invoked to pull down a building. In Randolph v. Accra City Council [1975] 2 GLR 198, the plaintiff claimed damages from the Accra City Council for wrongfully entering and demolishing her two-storey house. The Council asserted that they were justified in demolishing the building by virtue of the powers conferred on them by section 44 of the Local Government Act, 1971 (Act 359) (now repealed). The court held that the Council failed to comply with the provisions of section 44 of Act 359 since no complaint was made to a District Magistrate and no magisterial order had been obtained to pull down her property. The City Council’s act was therefore held to be unlawful.
CERTIFICATE OF COMPLETION FOR HABITATION
A building completed to the satisfaction of the Authority is issued with a certificate of completion for habitation. Even after a certificate of completion for habitation is issued, the Authority still has power to ensure that the building is safe for habitation. The Authority exercises this power by serving notice in writing upon the owner of a building, which in its opinion has fallen into a state of disrepair or neglect and constitutes a safety hazard to the public or for aesthetic purposes. This implies that the Authority may send an officer to your property to carry out an inspection to ensure that it is still safe for habitation.
If a person fails to carry out the repairs or painting within the time stipulated in the notice, the Authority may carry out the repairs or painting and take legal action to recover the cost involved in the work. Unfortunately, we have many buildings in our towns and cities that have been in existence for years without any inspection or maintenance.
CONCLUSION
Tragedy must not be the trigger to have a national discussion on ensuring that the buildings in our towns and cities are in compliance with our building laws. The general public must be educated on what steps they ought to take in putting up buildings in accordance with the law. The Authority must be well-resourced and staffed to be able to exercise their powers under the law such as carrying out inspections and enforcing the notices that they issue.
We are mindful of the fact that we live in a society of people and the first action of the Authority should not be to pull down an unauthorized building since, in most cases, a person’s life savings is invested in their building. Rather, we propose that the Authority should inspect existing buildings in our towns and cities, and work with the owners to regularize these buildings and make them safe for habitation. Going forward, the Authority should also enforce the law strictly to ensure that newly constructed buildings in our towns and cities are safe for habitation. As citizens, we should be more proactive in ensuring that society complies with the building laws of Ghana.
Written by:
Emmanuel Mate-Kole, Esq. and Kow Essuman, Esq.
Emmanuel is a lawyer and a leading associate in the Construction, Infrastructure and Transportation practice group at Bentsi-Enchill, Letsa and Ankomah.
Kow is a barrister; qualified to practise law in England and Wales, New York and Ghana. He is an associate in the Litigation and Dispute Resolution practice group with Bentsi-Enchill, Letsa and Ankomah. He is also a Global Shaper (Accra Hub) of the World Economic Forum.