Good Fences Make Good Neighbours
Each property is issued with a zoning certificate. A property’s zoning certificate stipulates, among other things an owner’s rights in terms of use of the property, the use zone, the height, coverage and density that the buildings are allowed to be built, as well as the building lines of the property. Building lines are imaginary lines along the inside of the property, parallel to the borders. The positioning of the building lines is determined by the relevant town planning legislation.
The reason for building lines lies in the common Law Statement “Sic utere tuo ut alienum non laedas” (use your own things so as not to harm that of another). Or, more commonly known as “good fences make good neighbours”.
When are building lines violated?
When a structure is built over a building line, or between the building line and the border of the property, it is a violation of the town planning laws that govern the property.
In more serious cases, it has happened that the structure not only encroaches on the building lines but the neighbour’s property as well. The same principle applies to any balcony, roof or any protruding part of the neighbour’s building over your property.
Violations of the property‘s zoning rights do not end with the encroachments of building lines and property boundaries but may include and is not limited to height restrictions, servitudes, density and coverage, to name a few.
What is the affected landowner’s suggested course of action?
The affected landowner should seek legal advice as soon as he or she becomes aware of the violations. If the affected landowner waits for a prolonged period, the failure to timely notify the Local Authority could be interpreted as condonation.
Who can be contacted if your neighbour violates town planning law?
As soon as you become aware of the possibility that your neighbour is violating a town planning law, you can report the violation to the town planning department of the Local Municipality. The Local Authority is obliged to investigate the suspected violation. If the owner is not compliant, the Local Authority can enforce the law by compelling the offending property owner to demolish or move the structure so that it no longer violates the town planning law.
Inspections
Unfortunately, the Local Authority may take a long time to inspect the properties, but once the inspection is done they will send a letter to the offending owner requesting him to demolish or move the structure.
If the owner does not react to the first letter, a second letter is sent, warning the owner that a court order will be issued, to order the demolition if the violation is not rectified.
Penalties and the Law
Thereafter, the Local Authority will instruct its attorneys to approach the court for an order demolishing the offending structure. The Local Authority may also be able to penalise the offending owner by charging increased rates and taxes.
If the Local Authority is not taking action to enforce the building lines, you may approach an attorney for assistance in bringing an application to the court to compel the demolition or removal of the offending structure. This can be done with or without the involvement or assistance of the Local Authority.
The court may order that the structure be demolished, moved, or awarded monetary compensation and order that the structure may remain. The outcome depends on each individual case. The factors that determine the outcome depend on the practicality, cost and the harm caused by the encroaching structure.
Local Authority Intervention
With regards to the Local Authority, a distinction must be drawn between the aspects of the building works where the Local Authority is duty-bound to intervene, and aspects where, once it has given approval for the building plans, and the Local Authority has served it purposes for which it was created.
The Local Authority should intervene where the structure is non-compliant. The intervention would be to issue a stop order to the offending owner, stating that no building work may continue before the proposed structure has been approved by the Local Authority, to ensure compliance.
Building Acts
The only scenario where a Court will be obliged to order a demolition is where an application is brought into the Magistrate’s Court by a Municipality under Section 21 of the National Building Regulations and Building Standards Act 103 of 1977 for demolition based on non-compliance with the provisions of this Act.
The offending owner is in a position to apply for relaxation of the town planning laws, for example, to apply for a building line relaxation. As the owner of the adjoining property, you have the right to give consent to or object to the relaxation. Unfortunately, the Local Authority can approve the relaxation application with or without the adjoining property owners’ consent.
In order to safeguard your best interests, especially the value of your property, it would be best to seek the advice of an experienced professional in this field of law.
If you are overwhelmed, there is nothing wrong with asking for help!
We will show you in the right direction.
Carina Botha
Boaz Architects
082 920 3158
