In a High Court matter in the Northern Gauteng Division in 2013 it was yet again highlighted how easily a property owner can unknowingly find himself in deep trouble by, on the one hand unscrupulous developers, and on the other, belligerent neighbours. We will refrain from naming people or places, but the facts are as follows.
A property owner (let’s call him Mr Peters) purchased a stand in a lifestyle estate in a picturesque town in Mpumalanga. The developer determined in the sales contract that only he may undertake any building work on the estate. Peters could make a choice from a range of building plans, but had to sign power of attorney to the developer and then await his keys to the completed unit. The developer would take care of all aspects of building plan approvals, construction, and would not even entertain the slightest interference by the owner.
The Conditions of Establishment of the township and, hence the zoning of the land after proclamation, indicated a zoning of Residential 2 – albeit on the layout and general plan of the township it was already subdivided into single stands. Although the general requirement of the municipality’s Town Planning Scheme imposed building lines of 2m on side boundaries and 3m along the back boundaries, the actual zoning of the erven stated that building lines will be determined by an approved Site Development Plan (SDP) to the satisfaction of the local authority.
In the Homeowners Association’s (HOA) Articles of Association it was provided that an Architectural Review Committee be elected. In the early stages, the developer managed and to a large extent constituted the HOA as well as the review committee. As part of the documentation of the Deed of Sale an annexure was attached containing the architectural guidelines of the estate, setting very specific style and finishing requirements. Among others, the guidelines stated clearly that building lines would be 2m on side and back boundaries. The HOA would have the powers to amend requirements, following a process of voting, and no building plans may be submitted to the municipality without the due approval of the Review Committee. In recommending plans for approval, the Review Committee must take heed of the architectural guidelines and the approved Site Development Plan.
The developer then started phase 1 of the development and immediately realised that due to the limited size of the erven, the placement of units became increasingly difficult due to the required space between units. Therefore in phase 2 and later phases 3 and 4, the building lines were reduced to 1m along all sides and back boundaries. In theory the HOA should have passed a resolution to enable this reduction. In official municipal documentation the reduced building lines were indicated and building plans were approved accordingly. Construction of the units continued on this basis and occupation certificates were issued by the municipality. Likewise, Peters took occupation, fully under the impression that the developer had complied with all requirements.
The first inkling of trouble was when Peters’ neighbour (let’s call him Mr Rudolph) started complaining that Peters and his family were invading his privacy due to an indirect view of his bedroom window from a covered patio and braai area. Also, argued Rudolph, the noise emanating from the braai area was disturbing his peace. Since the two structures were merely 2,5m apart and by ruling of the architectural guidelines, no boundary fences were allowed, Peters agreed to brick up half of the patio area to the roof to limit the disturbance.
You’ve been served
Time passed and after a few years, like a bolt from the blue, Peters received a letter from Rudolph’s attorney demanding the demolition of the patio, based on the allegation that the dwelling, or parts of it, was constructed in violation of the building line. This demand came as quite a shock to Peters who was under the impression that the developer had taken care to construct the dwelling to requirements. Naturally Peters obtained legal advice and was duly advised to decline the demand.
Rudolph consequently filed notice in the High Court, seeking an order for demolition. Peters was forced to oppose the application. Together with Peters, as respondent, Rudolph also added the municipality, the developer and the HOA as co-respondents.
Investigations on both sides were conducted and evidence collected. Founding affidavits, pleadings and expert witness statements were compiled on both sides, reaching mountainous proportions. It was found that the developer had firstly not compiled an SDP for the development and, secondly, did not receive final approval of the building plans from the municipality – despite numerous assurances that he had.
Poor municipal discretion
Far worse, in fact, was that by the lack of an approved SDP, the municipality may not have exercised its discretion to reduce the building lines from 2m and 3m to 1m, as were indicated on the building plans. Having approved the building plans as such, including the issuing of occupation certificates accordingly, the municipality also acted grossly negligent. In addition, no evidence could be found that the HOA had passed a valid resolution to reduce in its own architectural guidelines the building lines from 2m to 1m, and hence any building plans so recommended for approval to the municipality were in violation of their own standards. When the municipality was challenged to provide proof of the due process to relax the building lines, no evidence could be offered. Furthermore, it was disclosed that only a single inspection was made before the final occupation certificate was issued. In the opinion of the building inspectors, the HOA’s Architectural Review Committee would have overseen the building works, thereby blatantly neglecting their duty as local authority in terms of the National Building Regulations.
Upon inspecting the conditions in loco the court found many examples on the estate where the said building lines were violated and hence dismissed the option of demolition of the single dwelling. The court then instructed the parties to rather reach a settlement. By this time, the merits of the case were fading in comparison with the astronomical legal costs that had been escalating and naturally the applicant’s and respondents’ main focus turned to the pinning of cost orders for these amounts.
In the end a settlement was reached, which subsequently was made an Order of the Court, that:
the parties agree to and condone the relaxation of the building line to 1m, since demolition was out of the question;
the patio be completely bricked up to the edge of the veranda to improve privacy; and
the municipality, the developer and the HOA must contribute to the cost of the applicant and the owner.
In the end the municipality had to pay in excess of R200,000, the developer and HOA respectively more than R100,000, while the applicant, Rudolph, had expenses of approximately R200,000 and the property owner, Peters (who in this case was completely innocent) approximately R160,000.
The conclusion in this matter is clear. Before you buy or make any appointments for a developer to develop your property, observe the old adage: Caveat emptor. Or in plain language: Beware the buyer.
First make sure that all requirements have been met. Do not accept the mere word of a developer or agent of official that all is well. Demand proof of all claims made. Secondly, exhaust all other avenues to settle a difference with your neighbour before choosing the route through the courts. In this case a solution in the form of a simple wall, costing perhaps R5,000, in the end cost the parties R760,000 in legal fees! This amount, however, fades into insignificance against the irreparable damage to neighbour relations.
This story is reproduced with the kind permission of Danie Saayman of CityScope Town Planners