IT IS STILL DIFFICULT TO GET AN INDICTMENT ON A NEW BUILDING LIKELY TO OBSCURE YOUR VIEW on 2008-09-26"EN-GB" xml:lang="EN-GB">IT IS STILL DIFFICULT TO GET AN INDICTMENT ON A NEW BUILDING LIKELY TO OBSCURE YOUR VIEW on 2008-09-26" />
IT IS STILL DIFFICULT TO GET AN INDICTMENT ON A NEW BUILDING LIKELY TO OBSCURE YOUR VIEW
As a result of recent court rulings, the perception has grown in the South African property market that a property owner is entitled to enforce his “rights to a view” as part of his general property ownership privileges - but this is not so, says Mike Greeff, Chief Executive of Greeff Properties.
“This fact is important to note,” he said recently, “because there is still a small handful of people who are buying houses in the belief that their view can be protected in perpetuity.”
In general, said Greeff, the law rules that if a building, which cuts into a neighbour’s view is built in accordance with the local authority’s plan approval processes it can go ahead no matter how inconvenient this may be to the neighbours.
In the much quoted Paola vs Jeeva N.O. and Others case, Mr Paola, who owned a property high on the Durban Bluff with a 180º view applied to the court to stop his neighbour from building a double storey house.
Paola contended that such a building would reduce the value of his home by at least 30% and detract from his enjoyment of it. He referred to Section 7 (1) (b) (II) of the National Building Regulations which empowers the local authority to refuse approval to any scheme which might lower the value of an adjoining property.
Jeeva replied that he was merely exercising the development rights of the property and was not contravening any laws.
The court ruled in favour of Jeeva, saying that it would be unfair to give Paola an extra privilege on account of his being in the area ahead of subsequent buyers.
Similarly in the Hout Bay case of Clarke vs Faraday, the court ruled in favour of the latter, saying that although it was unfortunate that Clark’s view was spoilt, he should have known when he bought his house that his neighbour had the right to build into his view line. To allow Clark to stop Faraday, it was ruled, would be to give him rights that were not included in the relevant title deeds.
Where a proposed new building contravenes regulations promulgated by LUPO (Land Use Planning Ordinance) a very different court ruling can usually be expected if a view is impinged, but in the Cape Town Municipality - and, no doubt, others - for the present, said Greeff, it looks as if it will take more negative factors than view impairment to prevent a building going ahead so long as it complies with the usual planning regulations.
For further information contact Mike Greeff on 021 763 4120.