Neighbours behaving badly: Nip illegal building in the bud!

A1BBad neighbours don’t just impinge on your enjoyment of your property; they can also cause serious harm to its value.  So if you notice illegal building activity next door, move quickly to nip the problem in the bud.

Your hand in this regard has just been strengthened.  An important new decision by the Supreme Court of Appeal (SCA) confirms that you aren’t limited to trying to compel the municipality to enforce its own building and zoning laws – you can apply for demolition directly.

Demolition ordered – despite a “supine” municipality

  • A new retail/office development exceeded the local Town Planning Scheme’s coverage limit of 60% (the actual coverage as constructed was 86.13%), and insufficient parking bays were provided
  • The developer claimed to have obtained municipal approval of its building plans but the “supine and uncooperative attitude of the municipality” made it difficult for the Court to determine any more than that, if the municipality had indeed given approval, it seemed later to have cancelled it
  • In any event, held the Court, any such purported approval of the plans had to be set aside and the developer was ordered to partially demolish its building so as to bring it into compliance with the law.

First prize, second prize

The SCA has cleared the way for neighbours themselves to apply for demolition orders.  That’s an important new weapon in the fight against illegal construction activity, but it’s still only second prize.

The problem is that where you (rather than the municipality) bring the demolition application, “private” or “neighbour” law applies and the court is not obliged to order demolition; it has a discretion whether or not to do so.  And, demolition being a draconian remedy, the court may rather decide to make an alternative order such as a damages award.  Indeed, had the developer in this particular case not incurred the court’s wrath by persisting in its illegal conduct after ignoring warnings of illegality, it might have escaped demolition altogether.

In contrast, where a municipality does its job properly and brings its own application for demolition, “public law” applies and our courts have previously held that they then have no discretion where unlawful buildings are concerned – they must order “total demolition”.

First prize it seems is still to force your municipality to fulfil its legal and moral duty to uphold the law by taking the offending builder to court itself.

Regardless, the most important thing is to act quickly – so get legal help as soon as you become aware of illegal construction!

© DotNews, 2005-2016. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Are there limitations on ownership rights?

It is a recognised principle of property law that ownership does not confer absolute and unlimited entitlement on the owner, but that various limitations exist in the interest of the community and for the benefit of other people.

The most important limitation on the owner in the interest of the community as a whole is the payment of taxes to the state in respect of certain movable and immovable property. In the case of immovable property several measures make land available to a larger section of the community, which implies that the restitution of land rights and the provision of land will require measures for expropriation. Furthermore, a number of provisions deal with environmental conservation and physical planning which limit the owner’s entitlement in the interest of the community. Limiting measures in the case of moveable property prohibit the use of such property to the detriment of the community, for instance motor vehicles, fire-arms and dependence-producing substances.

There are also measures which limit the owner’s entitlement, not in the interest of the community, but in the interest of other individuals. The best known example in this case is neighbour law, which implies that the owner may not use his land in such a way that it constitutes an unreasonable burden on his neighbours. The criterion of reasonableness determines that, in these circumstances, the owner of immovable property may exercise his entitlements within reasonable bounds, and that the neighbouring owner or occupier must tolerate the owner’s exercise of his entitlements within reasonable bounds.

Other examples of the application of the criterion of reasonableness in the case of neighbour law are the obligation to lateral and surface support, measures dealing with encroachments, the mutual obligation regarding the natural flow of water and the elimination of danger.

Other people besides the owner may acquire entitlements (for instance use rights) in respect of the moveable or immovable property of the owner. Holders of limited real rights acquire entitlements in respect of the asset, which limits the owner’s ownership (dominium) as they burden the property. It is therefore enforceable against the owner and his successors in title. Certain creditors’ rights may also result in people acquiring entitlements in respect of the owner’s property. These rights are, however, only enforceable against the owner personally and do not burden the property as such, therefore it is not enforceable against successors in title.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.