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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-04-26
With the exception of an acrimonious divorce, there is very little to beat the intensity of emotions as that of feuding neighbours. Litigation (as opposed to mediation) is, incorrectly in my opinion, very often seen as the only solution to the problem at hand.

The issue of loss of privacy or the right to a view usually rears when a neighbour constructs a building or does renovations to his property, which causes his neighbour to lose some amenity, which the neighbour previously enjoyed.

Section 7 of the National Building Regulation and Building Standards Act of 1977 says that the Local Authority must be satisfied of that the building plans will not cause the area where the proposed building is to be erected to become disfigured, or that it will be unsightly or objectionable or that it will derogate from the value of adjoining or neighbouring properties.

This means that the Local Authority must also assess whether there is any possibility of adjoining properties becoming devalued as a result of the proposed construction.

Hence Local Authority can refuse to grant approval for any building plans. Many property owners have used Section 7 of the Act to try and challenge the Local Authority's discretion especially if they felt aggrieved that they lost a view which they previously enjoyed, or that they no longer have any privacy or that their property has now been devalued, and usually with little success.

In the case of True Motives 84 (Pty) Ltd v Madhi, which went before the Supreme Court of Appeal, a neighbour complained that the other neighbour's building was so extensive that the new building blocked his sunlight and compromised his rights to privacy.

He also claimed that the Local Authority failed to properly exercise its discretion regarding the issue of derogation of value of his property. The Supreme Court of Appeal however decided otherwise and dismissed the appeal.

Many of these so-called "neighbourhood disputes" can be successfully mediated especially as there is no recognition in our common law of a "right to a view".

The reality is that if there are any restrictions on your immovable property, it will be found in the title deed and off course the type of zoning of a particular area. Save for any conditions as contained in the title deed, a person will normally not be able to demand that he or she has a right to a specific view.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.