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Get to Grips with Restrictive Conditions

What can a buyer do when they’ve purchased their dream home, only to find their neighbour is planning to add a storey that will destroy their view or ruin their privacy? It happens often enough that it’s important for buyers to know, not only what the restrictions on their own properties are, but on that of their neighbours’ as well.
 
What can and can’t be done to a property is determined by a number of factors: common or statutory law, town plans which designate sites for residential property, commercial and the like and town planning schemes – all of which are general in nature -  and then restrictive conditions, which are property specific.
Study the restrictive conditions
 
Restrictive conditions aim to create, and preserve, a neighbourhood with specific characteristics. Examples of these conditions include:

·         Buildings that may not be higher than 2 storeys
·         That properties may not be sub-divided
·         That only 50% of the erf may be covered
·         The property can’t be used for business purposes

“It’s important for buyers to carefully go through the restrictive conditions attached to the title deed of the property they want to purchase. In doing so they’ll know whether the planned renovations they want to undertake will be possible – which might influence their decision to purchase”, advises Bruce Swain, CEO of Leapfrog Property Group.
 
Swain goes on to indicate that buyers are also allowed to inspect the conditions of surrounding properties. It might not seem like an issue when dealing with the property purchase – but if a neighbour has rights to run a business from their property, or to make significant alterations to their home, it can become a real thorn months, or even years down the line. 
 
What about subdividing?
 
If, for example, a home owner would like to subdivide their property there are several hoops to jump through. STBB (Smith Tabata Buchanan Boyes) explains that the subdivision has to be permitted in terms of zoning provisions, local authority by-laws and provincial legislation and that the approval of the local authority (municipality) must be obtained – i.e. the plans must be submitted to the local council for approval.
 
Home owners may also be required to obtain the consent of their neighbours or, in the case of complex subdivisions, an engineer’s report. The status of the property will also need to be changed at the deeds registry which entails a surveyor drawing up plans for the subdivision which need to be approved by the Surveyor General, subject to which a conveyancer can apply for the amendment to the title deed.               
 
Alterations to Sectional Title Properties

 
“When it comes to sectional title properties the first step is to inform the body corporate. The rest of the process is basically the same as for a subdivision”, explains Swain.
 
Neighbourly discord    
         
 
“The bottom line is that a home owner can complain to the local municipality about a neighbour’s proposed subdivision, renovations and extensions, but these will only be taken into account if said neighbour is in contravention of the restrictions laid out in the title deed”, says Swain, “for example, the home owner can complain that the neighbour is adding a third storey – if his restrictions only allow for two storeys. If however, the title deed lists no such restriction, the neighbour is fully entitled to add another floor, regardless of the effect this has on the neighbours”.


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