A WESTVILLE couple is appealing a decision by the municipality that may result in the negating of their right to a view.
This right was established in a praedial servitude that forbade their neighbour from erecting structures exceeding a certain height.
A praedial servitude gives rights to property owners. When the property is transferred, the right is transferred with it.
After their neighbour violated the servitude, he sought to get it scrapped.
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An application to this effect was approved by the municipality, but would only take effect once it has been registered in the Deeds Office.
This process was paused when the couple took the municipality’s decision on appeal – a process that cost them R5 000.
To Linda and Joshua Ankiah, this feels like extortion.
According to Linda and Joshua Ankiah of Robert Herrick Avenue in Westville, this huge upset started with a non-compliant neighbour, Ranesh Chandar, who lives in front of their panhandle property, who did not keep to the height restriction servitude in favour of the Ankiahs.
Linda, a former real estate agent for 20 years in Southern California, explained what this means. This servitude allows the Ankiahs and their future buyers to enforce the height on the land in front of their property.
Whereas the Ankiahs’ benefit is articulated in their title deed, Chandar’s contains a corresponding restriction.
When the Ankiahs bought the property eight years ago, this right made them more inclined to buy the property they now own.
Chandar built a two-storey building with a flat roof and high ceilings which breached the height restriction. He also placed a solar geyser estimated to be more than a metre in length on top of the already high roof.
Despite the Ankiah’s explaining that his actions contravened the servitude, it took two years of continuous correspondence between their attorneys before Chandar complied and removed the geyser.
After Chandar acknowledged his breach, a private agreement was made between the two parties.
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According hereto, he would compensate the Ankiah’s for the breach.
Nonetheless, Chandar was still denied his permit by the municipality.
“He then called off the agreement,” said Linda. The Ankiahs tried to take their complaint to the municipality, which stated that it could not assist the parties with a private matter.
The municipality was, however, willing to advise Chandar. It was suggested that he apply for the removal of the restrictive condition on his title deed. Once this has been done, he would have been able to get his occupational certificate permits.
The municipality stated its reasons for approving the removal of the restrictive condition decision in a letter to the Chandars as: 1) the restrictive condition is in conflict with the existing conditions of the site and should therefore be deleted; 2) the two-storey height restriction as per the Scheme is sufficient to control development on the site.
An upset Linda said: “What is the purpose of having the height restriction servitude?”
Joshua said: “We are shocked the municipality disregarded our constitutional property rights.”
Purpose of the appeal
Brian Dickinson, director of Peacock, Liebenberg and Dickinson Inc Attorneys and Conveyancers, who are representing the Ankiahs said: “We are taking the decision of eThekwini on appeal primarily on the basis that they appear to have disregarded the Ankiah’s constitutional right not to be arbitrarily deprived of their (registered) property rights by eThekwini to cure an encroachment by the neighbour who was always aware of the restrictions his property was subject to.”
Dickinson claimed the municipality had wrongly interpreted the Spatial Planning and Land Use Management Act (SPLUMA).
He said the act does not allow for the deletion of praedial servitudes, which the Ankiahs own.
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Dickinson explained that even if the municipality insists on interpreting SPLUMA to include Praedial Servitudes [which is unconstitutional] then its own reasoning for deleting the Ankiah’s clause does not hold water.
Dickinson also included points as to why the two-storey Scheme will never protect the Ankiahs’ view and why they depend on their praedial servitude to protect it forever.
This entire ordeal has caused immense stress for the Ankiahs. They are experiencing constant nightmares of having to fight regulations they purchased when they bought the house for theirs and future buyers’ own protection.
“This clause was the very basis of our negotiations for the purchase of our house. They have taken our legitimate right and want us to pay for something we already own,” added Joshua.
Breach of height restriction
When approached for comment, Chandar agreed he is in breach of the height restriction but cannot have part of his building cut due to the stability factor.
“I only applied for this application as per the advice from my architect to amend or remove Clause D to receive my occupational certificate permits.
“I chose to remove the clause as I had no intention of building anything further and should my property be sold in the future, it will be according to the municipality requirement. As per the advice from the municipality, you cannot build a three-storey house without consent from the municipality,” said Chandar.
eThekwini Municipality’s media centre and Claire Norton of the Development Planning, Environment and Management Unit did not respond to questions emailed to them two weeks ago.
HAS this happened to you? Has the Municipality tried to delete a servitude from your grant deed without your permission? We want to hear from you, e-mail deshnir@dbn.caxton.co.za
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