Running a business from home illegally will land you in trouble

Running a business from home illegally will land you in trouble

Private Property South Africa
Lea Jacobs

Just because the municipality has turned a blind eye allowing you to run a guesthouse from your home, this doesn't mean your neighbours are going to have to ignore the situation.

In a recent judgement reported in Smith Tabata Buchanan Boyes (STBB) newsletter, the courts found that neighbours do have a voice and can take action against property owners who flout the law even if the municipality chooses not to do so.

The background

The dispute related to the running of a guesthouse in Bethlehem in the Free State. The premises were zoned single residential, but that hadn't stopped the owner from converting the home into a guesthouse. The ensuing noise and disruption caused by the visitors started a row with the neighbours who eventually took the matter to court.

Both the property owner and the business manager of the guesthouse defended the action stating that they had been in the process of applying for the necessary approval from the municipality, although at some point they were notified that the municipality couldn't find the application and had been advised to resubmit the request. They also maintained they had been given verbal approval by a relevant official to run the establishment until permission was granted.

The neighbours argued that in terms of the Bethlehem Town Planning Scheme, the property was zoned as single residential and although it could have been used for purposes of ‘place of worship, place of instruction, instructional building or a place of assembly’, the owner hadn't obtained the relevant permission. In addition, they noted that according to the scheme, the zoning only allowed for a dwelling house or dwelling unit that was used for the accommodation and housing of single family. It was also noted on the Title Deed that the property had to be used in accordance with the stipulations of the Bethlehem Town Planning Scheme and the use of such of such property for purposes as a guesthouse fell outside this definition and would therefore be illegal.

They sought an order in terms of which the property owner was interdicted from continuing with the illegal use of the property.

The owners argued that the neighbours had no right to bring the application to court. Basically both the owner and the manager of the establishment believed that just because they had broken the law this didn't give the neighbours the right to complain, and it was up to the complaining neighbours to prove that the fact that they had opened a guesthouse had caused the complainants special damage.

The neighbours disputed this saying that an immediate neighbour had a legal right to force the homeowner to comply with the Town Planning Scheme because the scheme was intended to operate, not in the general public interest, but in the interests of the inhabitants of the area.

The court found the neighbours had the right to bring about the action and although it noted that the incidents of the noise and disruption themselves were not enough to grant an interdict, the fact the guesthouse was being run illegally led to the court granting an order in favour of the neighbours.

The judgement sends a clear message out to those who flout local laws and while the relevant municipality may turn a blind eye to the goings-on of property owners, there's a good chance your neighbours won’t and, as this judgement clearly shows, they have every right to take you to court.


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