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Sloan Wilson Attorneys Newsletter – July 2017

More on “A Right to a View”

The question of a right to a view has once again reared its head in our courts.  I published two articles in November 2010 on this topic (see my website www.sloanwilson.co.za).  Since that date there have been numerous court cases relating to this topic including the much publicised case a few years ago involving “tax guru” Matthew Lester and his neighbour relating to Lester’s luxury Kenton-on-Sea holiday home which led to Lester’s home being demolished by order of the court.

However, as pointed out in my previous article, it is important to note that the rejection of plans by a local authority or the issuing of a demolition order by a court in instances involving the impairment of an owner’s view do not result solely from the fact that property owners have a legal right to a view.  Very often plans are not approved or demolition orders are issued because the owner who erected the structure failed to comply with the relevant legislation pertaining to the approval of the building plan.  In a recent judgement given by the Western Cape High Court (Gerstle vs City of Cape Town) the court explained the principles applicable to the approval of plans in circumstances where the erection of buildings in accordance with the proposed plans will impair the view of other property owners in the area.

Two of the reasons why a municipality may refuse to approve building plans are that the proposed building would (a) probably or in fact be unsightly or objectionable and/or (b) probably or in fact derogate from the value of adjoining or neighbouring properties.  Many property owners who object to the erection of a building because it will impair their views rely on the argument that the proposed building will cause a depreciation of the value in their property. This issue (the possible depreciation in value of neighbouring properties) was considered in another court case (Camps Bay Rates Payers and Residence Association vs Harrison).

One of the main points made by the Judge in this case was that if a proposed building complies with all the relevant legislation then the owners of neighbouring properties will not be able to successfully object to the approval of building plans solely on the basis that they will lose their view if the proposed alteration or building is erected.  Such neighbours would however be successful if they could prove that the nature or appearance of the building is so unattractive or intrusive that it would be unsightly and objectionable but, the terms: unattractive, intrusive, unsightly and objectionable involve a fair amount of subjectivity and a heavy burden of proof therefore rests on an objecting neighbour.

The bottom line is that our courts have confirmed on a number of occasions that “a right to a view” does not exist in our law and a property owner who wishes to prevent a neighbouring property owner from erecting a building which will impede her view will have to prove a lot more than the fact that the proposed building will impair her view.

The lesson in this for all prospective buyers of property is: if one of the reasons you intend purchasing a property is because of the view, investigate very carefully whether this view can be impaired by the erection of new buildings or the alteration of existing buildings in the area.  A property lawyer would be able to assist you with such an investigation.

 

Buying a House with your Partner

In our modern society it is becoming increasingly common for unmarried persons who are involved in a romantic relationship to purchase a home together.  I strongly recommend that persons who do this purchase the property jointly and register the property in both their names.  If this is done our Common Law will govern the rights and obligations of each partner.  However, notwithstanding this fact I suggest that the partners, in addition, enter into a written agreement which specifically sets out all aspects of their partnership in respect of the property.  Such an agreement is even more important if the property is, for some reason, only registered in the name of one of the partners.  A fairly recent court case (Vermeulen vs Marx) highlighted the importance of an agreement being concluded in such circumstances.

In this case the parties (Vermeulen and Marx) were involved in a romantic relationship for 18 years.  During this period they co-habited in numerous properties including a property which they purchased jointly.  They both contributed towards the purchase of the property and shared living expenses.  Their financial contributions differed over the years as their circumstances changed.

Eventually they sold the property that they owned jointly and Marx bought a plot on which they built a home.  This property was registered in Marx’s name only.  When the relationship ended Marx denied that Vermeulen had any claim in respect of their joint home.

This left Vermeulen in a position where she had to institute legal action against Marx and prove that a universal partnership existed between them.  The court found that Vermeulen was entitled to a 33% share in the partnership but expensive and unpleasant litigation could, in all probability, have been avoided if Marx and Vermeulen had entered into a comprehensive co-habitation agreement.

Co-habitation agreements should cover all aspects of the joint ownership including the initial contribution of each party towards the purchase of the property; the expenses that each party will be liable for in respect of the property (bond repayments, insurance, maintenance, etc.) and very importantly what will be done with the property in the event of the relationship terminating.  The appropriate terms and conditions to be inserted in these agreements will differ depending on the circumstances of each case and parties would be wise to seek the advice of a property lawyer when purchasing property jointly.

Quote of the Month

Ethics is knowing the difference between what you have a right to do and what is right to do – Potter Stewart

The Lighter Side of the Law

A minister and a lawyer arrived at the pearly gates.  St Peter greeted both of them and gave them their room assignments.

He handed a set of keys to the pastor and said: “Pastor, here are the keys to one of our nicest efficiency units”. Then he turned to the lawyer and handed him a set of keys and said: “and for you, sir, the key to our finest penthouse suite.”

“This is unfair!” cried the minister.

“Listen,” St Peter said, “Ministers are a dime a dozen up here, but this is the first lawyer we’ve ever seen.”


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