Zoning Rights vs. Home Owner’s Association Rules

Zoning Rights VS Home Owner’s Association Rules A recent High Court judgment addressed the knotty problem of an HOA’s powers to bar an owner from running a home-based business. The facts of the case were that a homeowner in an estate who was running a hair salon from her house breached a written undertaking to the HOA to cease business, and that the HOA then applied to the High Court to interdict her from continuing. She was bound (via both her purchase agreement and the title deeds) by the HOA’s constitution and conduct rules – which prohibited the use of homes in the estate for anything other than residential purposes, except by special resolution, she argued, however, that her home business was permitted by the local zoning regulations – which did indeed permit certain small-scale non-residential activities – and that the HOA had no right to override these zoning scheme provisions by prohibiting all non-residential use. The interdict was, though, eventually granted by a “full bench” of the High Court, which held that “… there is nothing contained in our law which prevents a property owner from agreeing to a limitation of its rights ….”, and that the individual home owners in this estate had, by agreement, forfeited their right to use their properties for anything but residential purposes. Moreover, the Court said, the HOA had not purported to change the municipal zoning scheme and was “well within its rights to seek to preserve the residential character of the development.  The home owner was thus ordered to stop running her business from home and, to make things worse, was...

Law of Property

Law of Property MORE OFTEN than not, land owners do not understand the nature and consequence of servitudes in respect of their land.  This is largely due to the fact that South African property law hinges on old Roman-Dutch law, which is the foundation of our common law. In a recent case a full bench of the Western Cape High Court held that the Roman-Dutch principle of blokland is still very much alive in our law today. A company in Stellenbosch subdivided its land into two portions. The western landlocked portion was transferred to Fleurbaix Farm (Pty) Ltd and the eastern portion, accessible by public road, was transferred to Van Rhyn. By operation of law, and without having being required to be registered in the Deeds Registry, Fleurbaix had an automatic right of way servitude over Van Rhyn’s property in order to access the public road. Later, Van Rhyn made improvements and altered the landscaping of his property. In doing so Van Rhyn unilaterally closed Fleurbaix’s access to the right of way and replaced it with a right of way running across the northern section of his property. Fleurbaix was not happy with this new arrangement and approached the court. Judge Binns-Ward pointed out that the two properties were what were known in Roman-Dutch Law as blokland. The general rule with regard toblokland is that the landlocked property is automatically entitled to a right of way servitude over the adjoining subdivision in order to access a public road.  In terms of the principle of blokland Fleurbaix was entitled to choose the path of the servitude over Van Rhyn’s land. The caveat to this rule is...