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Unlawful use of Properties

Written by  Guy Dakin
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Unlawful use of Properties Unlawful use of Properties

In most metropolitan areas many properties have undergone a change in use and are no longer utilised as originally intended.  In many instances the shift away from the Central Business District area has resulted in former residential areas being utilised for business and other purposes.

It is necessary to comply with the applicable Zoning Scheme Regulations regulated by the Municipality in question. Prior to the purchase of a property a cautious purchaser will require proof of the current zoning from the seller. Additionally confirmation should be sought that any conditions imposed in an approved zoning have been complied with by the seller. From a practical perspective it is usually necessary to seek professional assistance from a person well versed with property law.

Certain conditions imposed by the Municipality when approving a zoning application may carry significant financial implications for a purchaser. In most instances the Municipality imposes a Transport Development Levy (TDL) which requires a substantial payment to the Municipality as part and parcel of a rezoning approval.

In many cases former residential properties are advertised and sold as business sites. In certain cases no formal rezoning application has in fact been prosecuted to the Municipality and the property simply falls within an area where a business zoning may be supported by a Municipality "in principle". However until such time as a rezoning application has in fact been successfully prosecuted and the conditions imposed by the Municipality complied with, the property may not be utilised for any purpose other than the existing zoning.

In certain cases it is imperative that the Title Deed relating to the property be thoroughly examined in order to ensure that the intended use is not prevented by way of conditions contained in the Title Deed. Notwithstanding the fact that a Municipality may have approved the rezoning of a property, such property may still require the removal of a condition in its Title Deed. In certain instances this is achieved by way of an Application to the High Court. However in the majority of cases Title Deed conditions are removed by way of an application in terms of the Removal of Restrictions Act.

As with any application it follows that such application may be unsuccessful in which case the property would not serve the purpose for which it was purchased notwithstanding the zoning thereof.

In specific cases it is necessary for a further examination to take place over and above the reflected zoning.

Zoning Scheme Regulations invariably provide for a number of Use Zones and each Use Zone provides for Primary Uses which reflect the permitted usage under the applicable Use Zone. However in certain cases it is necessary for a further application to be made to the Municipality in order to utilise the property for a secondary use which is accommodated by the prosecution of a special consent or departure application to the Municipality.

It is therefore necessary that the intended use of a property be supported by either the use permitted in terms of the Primary Use or, alternatively, in terms of a further special consent/departure approval enabling the property to be utilised in terms of the required Secondary Use.  Again, knowledge of the contents of the Zoning Scheme Regulations is required in order to examine whether the property will be capable of being utilised for the intended reason.

Property owners are able to obtain an Informal Town Planning Inquiry printout enabling them to ascertain the zoning which has been accorded to the property by the Municipality. However a detailed examination of Municipal records and the Title Deeds is advisable.

Guy Dakin

Guy Dakin

Guy Dakin is an Attorney, Notary and Conveyancer who has practiced in Port Elizabeth for the past 22 years, where he is a Director at Boqwana Loon & Connellan Attorneys.  In this dynamic law firm of 22 attorneys his areas of specialised practice include liquor licensing, conveyancing and associated property work areas such as Rezoning, Special consent and Removal of Restrictions applications.  He currently serves as the vice Chairman of Law Society's Standing Committee for liquor licensing affairs.