3 November 2016

Here’s the story of yet another bitter dispute between neighbours over the loss of a treasured view. The setting this time is a group housing development which was specifically designed to give each and every house views of both the sea-shore and of Table Mountain.

Front row v Back row: A sad tale, and a warning
Buying a property for its stunning views and sunny aspect is a great idea, but only if you do your homework properly. A new High Court decision of Gerstle and Others v City of Cape Town and Others (A484/2015) [2016] ZAWCHC 102  highlights the downside of getting it wrong -

• A sea-facing development in Cape Town contained two rows of houses -
  • A front row of single-storey houses
  • A back row of double-storey houses.

• Two front row owners decided to convert their houses to double-storey, and their building plans for the conversion were approved by the municipality.

• Unsurprisingly, the back row owners who stood to lose their views took fright and applied to the High Court for the municipality’s plan approval to be reviewed and set aside. When their application was refused, they appealed to a Full Bench.

• They lost again, the Full Bench dismissing their appeal. Unless they fund a further appeal they are stuck with watching helplessly as the neighbours’ builders deprive them of both their views and their sunlight. Their panoramic vistas across Table Bay will it seems give way to damp, moisture and mildew – not to mention a substantial drop in their houses’ market values.

What to watch for – a checklist
The judgment, in discussing the various arguments unsuccessfully relied on by the back row owners, provides a handy checklist for prospective buyers -

• Always check the local zoning scheme – in this case for example the area’s height restriction was three storeys, which should have been a clear warning to the back row owners to investigate further.

• What counts is enforceable legal rights, not promises and good intentions. The developers and architects told the Court that in designing the development the “sacrosanct fundamentals” were to ensure that all the houses would have access to both views and “maximum light penetration”. Critically however they failed to translate these intentions into legal obligations. They could, said the Court, have formally restricted the front row houses to a single storey limit by using legal options like –
  • The imposition of a servitude,
  • Restrictions on the title deeds,
  • A specific site development plan imposing a land use condition, or
  • Registration of a homeowners’ association.

• If you are buying into a group housing scheme, don’t rely on the fact that it must be “planned, designed and built as a harmonious architectural entity”. This concept, held the Court, doesn’t give you any rights to a view, privacy or light.

• Equally, don’t put yourself in the position of having to prove any of the factors that would cause a municipality to reject building plans. These include factors like the building will be “dangerous to life or property”, or will “disfigure” the area, or will be “unsightly or objectionable”, or will “derogate from the value of adjoining or neighbouring properties”. None will be easily proved. For example there cannot, held the Court, be a derogation of value solely based upon a loss of view when the alteration complies with the law “unless the nature or appearance of the building are so unattractive or intrusive that it exceeds the legitimate expectation of parties to a hypothetical sale”.

• Indeed, if you are going to rely on having bought with a “substantive legitimate expectation” of your view remaining intact, make sure you keep proof. In this case, for instance, one of the affected owners testified that before buying her house she had undertaken a “due diligence investigation” by contacting the City and being advised by an official of the Planning and Development Department that the front row houses could not be converted to double-storey. But she could not recall the official’s name and the Court rejected her justification as vague and non-specific.

The bottom line is this – before you buy, have your attorney check that your views, privacy and access to light will be protected by enforceable legal rights!

Jack Crook, Director at DotNews, is well known to law firms as the author of LawDotNews since 2005. Jack’s legal qualifications (LLB Lond and LLB Rhod) are supplemented by many years of practical experience in law, in marketing his own firm, and in helping other small and medium sized professional firms to prosper by using simple, low-cost, effective marketing strategies.  ? LawDotNews