Who Owns the View?

Private Property South Africa
Anna-Marie Smith

The misinterpretation, or inappropriate application of building laws, favouring the notion that money can buy spectacular residential property views, has once again seen the highest judgement. And this, despite there being no absolute legal right for entitlement to a property view.

Yet, what money does buy is expensive legal battles to defend the rights of property owners, rightly or wrongly suffering the loss of prime views, let alone the cost of abiding High court orders to demolish.

The magnificent coastlines along both the Eastern and Western Cape have long been the battleground of well heeled property owners, all contending for the best views within, or adjacent to nature reserves, close to high water marks, or skylines. The most recent case in point is the luxury Kenton on Sea ‘monstrosity’ as it was referred to by locals, whose owner was ordered by the Grahamstown High Court to demolish the house within 180 days. For more than eight years the owner lived in this house, claimed to have been constructed in miss proportionate dimensions to site allowances, not only obscuring the natural views of his neighbour, but that was also built without the required building approvals.

Legal cases during the past decade, where high courts intervened in the development of luxury coastal homes where views were contended, show varying causes. These range from incorrect building authorisations, poor building inspections not acting on technical non-compliance, the loss of market value of a property, to the contravention of the applicable environmental law of an area.

As for the preferred outcomes of such cases, industry professionals say when in doubt as to one’s right to owning, or even protecting a property view, and before entering into contentious legal battles, best assure the affordability of lengthy delays and potentially crippling legal costs. More importantly they say, is the careful selection of an experienced property lawyer, since the complex issue surrounding ownership and rights to views, as well as what constitutes market value, remains a grey area within the legal fraternity. What can be most beneficial is the meticulous scrutiny by lawyers of authorities’ faulty adherence to technical requirements of property developments, as required within different sections of the National Building Act (NBA). In part of this section it is stipulated that a local authority is obliged to refuse approval of any building plan where the proposed structure “will probably or in fact derogate from the value of adjoining or neighbouring properties”.

Still, when it comes to property value and views, legal matters can go either way as was seen in 2003, in the case of Paola versus Jeeva heard in the Natal High Court. This case illustrated how an appeal was lodged against the ruling that the word ‘value’ can only be interpreted as ‘market value’. Based purely on a technicality, the appeal was won because the local authority had failed to appoint a building control officer. Yet, when the Cape High Court heard an identical case in 2004, the judgement referred to Senior Council’s decision based on a technical point of non compliance, to be non binding on lower courts.

As a result, case law currently upholds two different, conflicting interpretations of what legally constitutes ‘value’, and as a result a challenge at best.

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