Navigating the legal blueprint for property expansions
Building a second dwelling on your property offers an excellent opportunity to generate extra income, whether by creating a bed and breakfast, guest house, holiday rental, or long-term rental property. However, it's not as simple as 'build it and they will come.' There are important legal and compliance requirements that must be considered before you venture into such a development.
Accommodations such as a bed and breakfast or guest house are popular income-generating mechanisms for homeowners in South Africa. These forms of accommodation tend to be established on private property, mostly as a second dwelling on the main property. They are therefore also situated in residential areas and linked to, or part of, the primary dwelling or main home on the property.
In South Africa, there are several legal and other specific requirements for the establishment of a second dwelling on your property, which requirements depend on the area in which the property is situated, as well as the regulations of the local municipality.
An important point of departure is to determine the zoning of your property. In South Africa, each municipality has zoning regulations setting out the type of developments that are allowed on certain properties. If your property is situated in an area that is zoned to have only one dwelling per erf, the erection of a second dwelling will not be allowed. The alternative to this is to apply for the rezoning of your property or to subdivide it into different portions. However, the erection of a second dwelling in an area zoned for residential purposes may not be allowed if the development will compromise the integrity of the area.
Even if the development complies with the relevant zoning regulations, the erection of a second dwelling must further also comply with the National Building Regulations and Building Standards Act No. 103 of 1977 (“Act”). This means that updated building plans will have to be drafted and submitted to the local municipality for approval to ensure that the plans and building comply with all the requirements of the Act. The Act specifically states that a local municipality shall refuse an application if the building to be erected is of such a nature that it –
a) will disfigure the area in which it is situated.
b) is unsightly or objectionable.
c) will reduce the value of the neighbouring properties, or
d) will be dangerous.
It is also important to verify whether the title deed of your property contains any restrictive conditions that may prevent you from erecting additional dwellings on your property. A title deed can, for example, contain a condition to the effect that only one building may be erected on the property. These types of conditions are usually imposed by a developer of a township or a sectional title scheme. Such restrictions are often found in gated communities or sectional title schemes where there is a body corporate or homeowners’ association that may prohibit the construction of additional buildings on one property. These entities very often have architectural guidelines that prohibit changes that will affect the aesthetic of the community or scheme.
It is important to highlight that restrictive conditions in a title deed trump any consent or approval by the municipality. Therefore, even if the municipality has approved the building plans in respect of the erection of a second dwelling, you are not allowed to proceed if there are conditions in your title deed restricting or limiting the property to one dwelling. The only way around this is to apply for the restrictive conditions to be removed from your title deed, but there will be costs involved and the process can be time-consuming.
Once you have the necessary approval from the municipality (provided there are no restrictive conditions in your title deed to deal with), there are further factors that must be considered. Additional health, safety and municipal service requirements come into play. You will have to ensure that your property complies with fire safety, ventilation, sanitation and food safety laws, as applicable. The addition of further dwellings to your property will increase municipal services, such as water, electricity and sewerage, which may hold additional costs and additional requirements in respect of separate metering of these utilities.
The erection of a second dwelling will also trigger changes to your homeowner’s insurance. You will have to make sure that the new building(s) is covered by your policy, and if you plan on operating a B&B, you may have to consider additional liability coverage in the event of accidents, injuries or other unforeseen events involving guests or their property.
The decision to build a second dwelling requires careful consideration of the necessary requirements and approvals. Before investing in plans or marketing your new bed and breakfast, consult with your attorney to ensure your project is well-coordinated and compliant, helping you avoid potential pitfalls and future frustrations.
Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).
Source: SeymoreDuToit & Basson
