Businesses are ruining suburb

2019-05-29 06:01
Japie Kruger

Japie Kruger

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Question:

Our house is situated in what used to be a quiet residential suburb.

Lately though, more and more businesses have started opening around us with houses being converted into business offices. This has ruined our quiet neighbourhood and resulted in more traffic and other problems in our neighbourhood.

Surely businesses cannot just open offices in a residential area. Is there anything we can do?

Answer:

From the outset it must be clearly stated that not all businesses being operated from a residential property are illegal and unlawful.

There are a few aspects that must be considered to determine whether the business may be operated from a residential property or not.

A first aspect is the title deed of the property which needs to be assessed to determine whether there are any restrictive conditions registered against the property which may prohibit the property being used for business purposes. A further aspect to be considered is the zoning of the property and whether such property is zoned for residential use or also for business use – and then further also for what type of business use.

You can determine the title conditions of a property at the Deeds Office, or with the assistance of an attorney and the zoning of a property through an enquiry at your local municipality.

Should there be a restric­tive condition, or the property be zoned for residential purposes making it unlawful for a business to operate from the property, you will have to consult your attorney to consider obtaining an interdict prohibiting the use of the property for business purposes.

In a situation where a final interdict is sought you will have to prove the following: 1) you as owner have a clear right; 2) that the conduct of operating the business from the property is causing prejudice or an infringement of your rights (injury) and; 3) the absence of an alternative remedy.

Our courts have found that if a property is used in contravention of its zoning rights, the use is unlawful and therein lays the injury/prejudice. When considering an alternative remedy, it must be adequate in the circumstances and must reasonably afford similar protection as an interdict.

As the infringement of using the property in breach of the zoning restrictions is ongoing and an offence in law, an interdict has been found to in certain circumstances be the only effective remedy available.

That said, each situation must be assessed on the merits thereof. A last point to mention is where consent from the local authority is obtained to use the property for another purpose than what it is zoned for. Even if such consent has been obtained but the restrictive condition remains in place on the title deed, the use of the property will still be unlawful if it is not in line with the restrictive condition on the title deed, at least until such condition has been amended or lifted.

In your case it does appear that if the businesses are operating from residential properties, there could be grounds to bring an interdict to stop such businesses should they conflict with either their title conditions and/or zoning.

My advice is to contact your attorney and determine whether there are grounds to bring an application against these businesses. You may even consider involving some of your neighbours who are also concerned about the businesses opening in your neighbourhood.– Japie Kruger, senior associate, Phatshoane Henney Attorneys

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