Disputes rife among property owners.

Posted On Monday, 11 November 2002 02:00 Published by eProp Commercial Property News
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We all need our own space. Ask anyone who has ever been a teenager but finding it is getting harder and harder to do when it comes to residential and commercial property.



In Gauteng, anecdotal evidence suggests that homeowners and property owners are, of late, entering into more and more disputes over building space. If true, property owners may be headed for more litigation and growing costs in the years ahead.

The most extreme example has recently come to a head in the wealthy northern suburbs of Johannesburg. There, tensions between The Mall of Rosebank and its neighbours are set to result in demolition of a large structure built over one mall entrance because of a dispute over the use of space.

A tad further north, the unlikely rallying cry 'To the barricades!' has divided neighbours in the upmarket suburb of Sandhurst, as calls have been heard for security booms to be placed on public roads.

While some residents support such booms, arguing that they will increase security, others are incensed over the disruption and inconvenience this has caused.

Property owners in Plettenberg Bay and Clifton have had neighbours' holiday homes torn down; the buildings had contravened title deed conditions.

In recent years the mansions in question exceeded height regulations specified in the title deeds. Incensed residents whose sea views were blocked obtained court orders for the offending buildings to be torn down.

Michael Pinnock, a partner at law firm Webber Wentzel Bowens, says homeowners are entitled to improve their property. However, such improvements may not exceed the building laws.

Every property has a title deed that contains restrictions, such as limits on height. For example, the height and parameters which a home may not exceed.

The town planning scheme also affects properties. Before any building can take place, both the planning scheme and title deed must be in order, says Pinnock. The scheme will contain restriction parameters such as height and parking in the case of a commercial and industrial property.

Pinnock says the scheme also makes provision for a 'building line', or boundary. 'The building must be within the building line and not interfere with the servitude'. Servitude is a restrictive condition in which the property may be used. For example, someone else may have the right to use water on a property, or have the right to walk through a property.

If the building interferes with the servitude, the local authority is entitled to issue a stop order a notice issued in terms of building regulations says Pinnock.

A builder would have to stop building until building plans were passed and the building line was relaxed, he says. If a building is already completed, the owner of a property can approach the high court for the 'encroachment to be removed'.

However, the action would have to be brought within a 'year and a day', says Pinnock. This is an old Roman-Dutch law remedy, he says. After that the owner can only seek monetary damages.

SA Association of Property Owners CEO Brian Kirchman says in many instances town councils have passed plans 'which clearly should not have gone through '. The association represents developers, owners, financiers, architects and other professionals connected to the commercial property industry.

'This is what gets residents up in arms,' says Kirchman. 'It is a money-grabbing situation.'

He says a good example that has been building up over the years is Sandton. 'It should only be one-tenth of its size. Since it was rezoned there has been a traffic surge, increase in crime and electricity problems.'

Kirchman says Sandton was designed to be a small residential area. He says the council should be circumspect before approving plans. It should take into account issues such as bulk services, the fact that roads may need to be widened and sewerage pipes need to be made larger.

The developer of the property should also consider putting revenue into the infrastructure if the project is a joint venture, he says.

Pinnock says environmental issues also need to be taken into account when building or developing property. Before commercial buildings are erected, a 'tree audit' needs to be carried out, he says. Certain trees, such as oaks, are protected. An environmental assessment report must be prepared by the developer.

Aesthetic issues are more complex. He says they are usually controlled by the title deed of a property. For example, the deed may specify that zinc walls may not be built.

Then there are the more 'narrow themes' of building regulations, says Pinnock. Body corporate agreements specify how cluster homes might be developed.

Pierre Fourie, CEO of the Building Industry Federation of SA, says it is a common occurrence for building limits to be exceeded. Fourie says this is usually because building plans are not checked properly.

Vanda Forssman, a director at law firm Cliffe Dekker, says that in terms of the National Heritage Act, any person wishing to demolish or carry out an alteration to a house or building older than 60 years requires a permit from the Provincial Heritage Resources Authority. Forssman says that this would include any work on a structure that was formerly a national monument.

Unless a valid permit is issued, work may not take place, she says. 'This would even include a lick of paint.'

A contravention of the act is an offence.

Last modified on Thursday, 22 May 2014 20:04

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