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Checklist for Home Buyers - What to do when your neighbour’s renovations block your view

Category General News

Bitter disputes between neighbours never end well and even if they do there is always an aftermath of awkward smiles and greetings.  But what can you do to prevent pitfalls when you have specifically bought a house for the views? Based on the principles of Common Law, namely the Law of Neighbours, we have created a checklist of what to watch out for when you view properties that you are interested in buying.

5 checkpoints to save your house views:

  1. Local Zoning Schemes

Always check the local zoning scheme, if this is applicable. For example, the area’s height restriction could be three storeys, which should have been a clear warning to the back row buyers to investigate further. For more information visit capetown.gov.za

  1. Legal Rights

Check the enforceable legal rights – they count! There could be formal restrictions that limit houses and buildings to a specific height and these include:

  1. The imposition of a servitude;
  2. Restrictions on the title deeds;
  3. A specific site development plan imposing a land use condition; or
  4. Registration of a homeowners’ association.
  1. Check the facts

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.  

  1. Don’t count on  hypothetical scenarios

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 “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 of these scenarios 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”. 

  1. Keep a paper trail

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 one case, an affected owner 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.

In order for you to  establish a cause of action, the complaining party (you) would need to prove:

  • The existence of a servitude (for example a servitude of unrestricted view or a servitude of not building higher);
  • A registered restrictive condition;
  • The application of the provisions of a town planning scheme or other planning and building legislation; or
  • Malicious intention to cause harm.

Author: Berman Brothers

Submitted 03 Jul 17 / Views 1100