SECOND DWELLING ON A PROPERTY

May you run a bed and breakfast or creche from your home, or even decide to build a second dwelling on available space on your property? In most instances, the answers to these enquiries will be found in the zoning provisions that apply to the area in which the property is situated.

Where do zoning regulations come from? Municipalities, to control harmonised forward planning and development of residential, industrial and business areas in their jurisdictions, have bylaws that grant certain “use rights” to property owners. These are listed and described in a municipality’s zoning regulations.

A longstanding zoning provision imposed by the City of Cape Town municipality (CCT) held that properties zoned SR1 (Single Residential 1) may (generally) erect only one dwelling on their properties.  So, if you owned a large property and wished to build a second home thereon for an ageing parent, varsity-going children or for on-selling, this was problematic.

However, since July 2016, the CCT Planning By-law makes it possible for SR1-zoned property owners to erect a second dwelling on such properties. This opens up novel possibilities to unlock value in properties. But before embarking on this route, note importantly that:

• Should your SR1-zoned property have a restrictive title deed condition prohibiting the erection of more than one dwelling thereon, an application to Court for removal of the condition is required. The outcome cannot be guaranteed, as many factors may be relevant in considering the importance and necessary continued operation of the specific title deed condition.
• All building activities must further be compliant with limitations contained in applicable building regulations.        
• If it is the owner’s intention to sell the additional residence, it will be necessary either to subdivide the property or establish a sectional title scheme thereon. The former means that the registered diagram of the property is amended to show that a part has been “cut away” and that there are now two (or more) erven where initially there was only one. If a sectional title scheme is established, each home/unit is capable of separate ownership but the land on which the homes stand, will be jointly owned in undivided shares by all owners of units. Many more technical and legal differences exist between subdivision and sectional title ownership.

Whichever way a property owner chooses to make use of this opportunity, will depend on individual factors pertaining to his or her property. It is considered crucial to have a town planner or architect and conveyancing attorney involved in the planning, from the word go.

Contact Martin Sheard at martins@stbb.co.za for assistance.