Is there a building, structure or tree in your scheme that is obstructing your view of Table Mountain, the ocean, or the banks of the Vaal River? If the answer to this question is yes, then do you have a right to an unobstructed view from your unit? The answer to the latter question is not based in the provisions of the Sectional Titles Act (95 of 1986), but rather the principles of Common Law, namely the Law of Neighbours. Many principles of which are incorporated into the Sectional Titles Act, which regulates the relationship between neighbours in a community scheme.
We often deal with issues of dispute where one party is attempting the enforcement of the right to a view. However, as we advise these parties, there is no entitlement to the enjoyment of a view. In the English case of Dalton v Angus, Lord Blackburn made the statement that “a view was a matter of delight, and not necessity”.
For so long as an owner of land (or a unit) builds on, or uses their property, in a lawful, normal and reasonable manner, complying with the applicable building legislation and regulations, such as the National Building Regulations and Building Standards Act (103 of 1977), obstructing another’s view is not deemed to be nuisance or actionable harm.
To establish a cause of action, the complaining party 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.
Complaining parties often challenge the local authority’s approval of building plans, attempting to raise issues such as incorrect procedure in considering plan approval, and the negative effect the proposed building would have on the market value of the neighbouring affected property. For example, if the proposed building would diminish a unit’s sea views.
The South African case of Paola v Jeeva is often cited as the leading authority for the protection of a right to a view. However, the success in this case was based on the argument that incorrect procedure was followed in the plan approval process, and not because the proposed building would have infringed the right to enjoy a view. Therefore, this case did not offer an indirect right to a view.
As mentioned at the beginning of this article, trees placed within a section or on common property within a scheme may also obstruct your view. An interesting article deals with this problem.
This article first appeared on the Paddocks Blog