Is it legal to work from home?

Private Property South Africa
Cityscope

All formal towns are governed by a town planning scheme (also nowadays known as a land use management scheme) in terms of which each parcel of land or stand has a specific zoning or land use right.

A zoning is merely an indicator of the restriction on the erection and use of buildings or the use of land. It underpins the general purpose of a town planning scheme, which is the co-ordinated and harmonious development of the area in such a way to promote the health, safety, good order, amenity, convenience and general welfare of the area. It can therefore be seen as the “agreement” between the collective community to respect and protect each other’s right to usage of property. It is the duty of the municipality to enforce the town planning scheme and to ensure the approved zonings are respected.

Dwellings

Dwellings are normally developed by virtue of a zoning of “Residential 1 or 2” and are generally defined as a set of self-contained habitable rooms, including a bathroom(s) and a single kitchen, for the purpose of residence by (normally) a single family. This prohibits the use of the property for business purposes, retail, industry, and so forth.

On the other hand, a zoning for “Business 1, 2, 3” or similar, makes provision for offices, shops, banks, restaurants, hotels, entertainment, limited workshops, and so on, depending on minor variations in different schemes. It should be reasonably clear that the unintentional mixing of the residential zones and the business zones, will lead to the degradation of (usually) the residential character.

Mixed-use zones

A more recent tendency in town planning is to provide for a so-called “mixed-use zone”, where sleep, work and play are intentionally combined to achieve a specific character. However, in the case where tranquil neighbourhoods are being infiltrated by business activities, residents are normally quick to respond and illegal land uses are often brought to the attention of the authorities.

Why then, do we see so many businesses in dwellings, if it is the duty of the authorities to enforce the town planning scheme and prevent illegal usage? The first answer is of course that the municipalities generally have a lack of resources to regulate or actively police the areas. They greatly depend on whistleblowers in the community and only then respond. Secondly, there are many businesses that are actually being conducted legally.

Micro businesses

Legal business in a dwelling house comes in three variations. Let’s start at the most elementary and for which you will need no permission from the municipality. This is the typical micro business, such as a one-man show, part-time business, accountant, attorney, GP or dentist working from a study or consulting room(s) in his/her own house. Most town planning schemes makes provision for the conducting of a profession or occupation from a dwelling house as a primary right, sometimes called a “home enterprise” provided certain criteria are met.

Typical conditions may include:

  • The principal of the business must reside in the dwelling.

  • The dwelling must be predominantly used for residential purposes.

  • A limited area for the business is determined.

  • Not more than the principal and two assistants may be employed.

  • No goods may be displayed in windows and no large scale stockpiling on the property.

  • Sufficient parking must be provided on the site.

  • No noise or other nuisance may be created.

  • There may be no workshop for vehicles, shops, entertainment, activities attracting traffic, manufacturing and so on.

  • Any signs displayed may not exceed a certain size.

  • If the business is a place of child-care, not more than a certain number of children may be taken in.

Consent and permission

The second type of legal business is where a business owner wishes to exceed some of the requirements mentioned. In such a case the owner may apply to the municipality for a consent, permission or discretion. Approval of such consent will impose conditions and, should the business be found to disregard such conditions, the approval may be withdrawn.

Rezoning

The third type of business premises is where an owner applies to the municipality for the rezoning of the residence to convert it completely to a business building, but where, at the discretion of the municipality, the owner is prohibited from demolishing the structure. A business such as this, which is sometimes called a “dwelling office” may be 100 percent converted internally without the external appearance being changed drastically.

Normally this type of use is only allowed by the municipality in very specific predetermined areas, often bordering on major transportation routes, as a buffer to a neighbouring residential area. There is no obligation on any residential component in the structure, but to the uninformed passerby it may still resemble a dwelling.

Before you embark on using your home as a business, please pay a visit to your local town planning office or speak to a consulting town planner. As each municipality may have its own requirements, rules and bylaws, the above discussion cannot possibly cover all eventualities. Also, by violating the requirements of a scheme, you will expose yourself to sanction with often dire consequences.

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