11 Feb 2009
A very important decision was taken by the South Eastern Cape Local Division Courts when they enforced their ability to have an owner demolish their buildings because they do not have the correct provisions in their title deed. The case was reported as Van Rensburg and Another v Nelson Mandela Metropolitan Municipality and Others - 2007 4 All SA 950 (SE). In summary: residential neighbours were embroiled in a dispute about buildings on urban property. The applicants sought an order for the demolition of the offending buildings on the property and an interdict to prevent nuisance emanating from the property.
Selfish neighbours
In essence, the defending party had constructed a guest house on the adjacent property to a complaining neighbour. Although some building permission was received from the local authorities (after some of the property had been constructed), the person had built without getting the correct zoning or planning permission. It was obvious from the reported case that the defendant was not acting in an altogether neighbourly way.
The effect of this decision is to show land owners that their neighbours cannot just do what they like with their property. For example, it seems to be prevalent that businesses of all types are being erected on residentially-zoned properties where businesses are not allowed in terms of the title deeds and that additional homes/flats are being erected on sites that only allow for one residential property.
The reason for the court's decision was that conditions in the title deed of a property are more important than approval (or rezoning) given by a local authority and that any building or business that takes place in contravention of the title deeds' condition is unlawful.
While this is only binding on the South Eastern Cape Local Division, the case could pave the way for similar decisions in other regions.
Demolition pay-back time
The law allows for the disgruntled neighbour to be awarded substantial damages for nuisance and for reduction in the value of their property as a residential home. The law also allows for the court to demand that the property be demolished back to what is actually allowed in terms of the title deeds.
On top of this draconian measure the property owner was also ordered to pay all the costs. At last there seems to be an option for those who are seeing the characters of their suburbs being changed in contravention of the title deeds. An interesting point was that any owner in the surrounding neighbourhood would be able to take this action as the court decided that the conditions in the title deed were registered for the benefit of all owners in a suburb.
Realestateweb's guest columnist Mike Spencer, of Platinum Global in Bloemfontein, has been involved in body corporate management and sales since 1980.
Article published on Realestateweb.co.za