Legal Articles

You have bought your dream home in a group housing development which was designed in such a way to give each and every house a view of the ocean.

The property owners who reside in front of you, decide to add another storey to their house, thus leaving you with no view of the ocean – can you prevent them from adding another storey to their home, and are you entitled to the view?

A recent High Court decision highlights the pitfalls in not doing your homework and emphasises the maxim “buyer beware”. 

A sea-facing development in Cape Town which contains two rows of houses:

• A front row of single storey houses.
• A back row of double-storey houses.

Two of the owners in the front row decided to convert their houses to double-storey, and their building plans for their houses were approved by the municipality.

The back row owners applied to the High Court for the municipality’s plan approval to be reviewed and set aside. Their application was refused and they then appealed to a Full Bench of the High Court. Once again their appeal was rejected by the Full Bench.

Prospective buyers, when buying properties for its views, are advised to always check the following:

• Always check the local zoning scheme. In this case, the area’s height restrictions were three storeys.
• Enforceable rights will always stand and not just confirmation from some local official or the good intentions of the Developer.

The architects and developer, when testifying, said that the “sacrosanct fundamentals” in designing the development were that each house would have a sea view. However, the court said that their intentions cannot be converted to legal obligations.

They could have formally restricted the front row houses with options like:

• Imposition of a servitude.
• Restriction on the Title Deed.
• A specific site development plan imposing land use conditions.
• Registration of the Homeowner’s Association.

If you are buying into a group housing scheme, don’t rely on what the developer states that it must be “planned, designed and build as a harmonious architectural entity”. This does not automatically give you a right to a sea view.

The Court also held that there cannot be a derogation of value solely based upon a loss of a view when the alteration complies with the law “unless the nature or appearance of the buildings are so unattractive or intrusive that it exceeds the legitimate expectations of parties to a hypothetical sale.

At Van Deventer and Van Deventer Incorporated we will do the due diligence on your behalf and ensure that your right to a view, privacy and light is protected by enforceable legal rights before you sign the Offer to Purchase. Contact us today.