Understand land use regulations before ‘repurposing’ your house

Homeowners who are considering using their house for a different purpose, or even those who are concerned about their neighbours suddenly starting a creche, beauty salon or motor repair shop, should study their town or city’s land use bylaws.

Read: Take note if you are conducting a business from your private residence

Several homeowners have indicated to Moneyweb, following our article on the case of City of Johannesburg v Zibi and another, that they suspect their neighbours are in contravention of the regulations.

In the Zibi case the owner, his wife and two minor children lived in their home and rented two rooms for student accommodation. The family was charged a penalty tariff.

The case first went to the Johannesburg High Court, where the Zibi’s counsel argued that municipalities must formally inform ratepayers that they are in breach of their zoning category. The valuation roll has to be amended and the change must be published in the provincial gazette.

The high court agreed, but the matter was taken on appeal before the Supreme Court of Appeal (SCA).

Appeal upheld

The majority of SCA judges upheld the city’s appeal, arguing that municipalities are entitled to levy the penalty rates based on the Municipal Structures Act. This act is the umbrella or empowering act under which the Rates Act falls.

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They also argued that it would place an “unreasonable” burden on city councils if they had to publish a supplementary valuation roll for every non-conforming use of a property.

According to the SCA, the home was used as a commune, a commercial concern.

Different bylaws

Tommy Brümmer, owner of Tommy Brümmer Town Planners in Cape Town, says the land use bylaws differ from municipality to municipality, and some have stricter rules than others.

He says it is not advisable to generalise because what is permitted in Cape Town may not apply in Johannesburg or Durban.

Brümmer says in Cape Town the regulations permit homeowners an additional right in single residential zones. In terms of the Mother City’s rules a “family” is defined as one person maintaining an independent household, or two people related by blood or marriage or civil union maintaining a common household, or not more than five unrelated persons without dependents maintaining a common household.

“This means that together with your family you will be allowed to rent out accommodation to five people. However, if there are six unrelated persons the owner must ask permission from the council to depart from the rules.”

According to the City of Johannesburg Land Use Scheme of 2018 a commune is a “dwelling house where the habitable rooms are rented out for an extended period to unrelated persons and who share the communal facilities such as the kitchen, lounge, dining room and bathrooms and may not exceed eight occupants”.

Rules for office space

In terms of the Cape Town and Johannesburg rules a family is allowed to use the smallest of 50m² or 25% of the floor area as an office.

This means that if your residence is 100m² you will only be able to use 25m² (25%) for office space.

Homeowners who exceed the allowed floor area have to apply for a departure from the regulations. The council has to advertise the application and allow for comments or objections from neighbours.

It is quite complicated since the rules can differ vastly from city to city.

In Johannesburg the land use definition for medical consulting rooms means a building designed for (such) use, or a building or land which is used for consulting practices associated with restoring or preserving health. It excludes overnight or operating facilities. This use falls under the ambit of business purposes unless separately defined.

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However, in Cape Town the owner of the practice must apply for general residential use with permission to operate a clinic, a wellness centre or a dental practice.

Brümmer notes that it is not common for land use inspectors to search for non-conforming use. However, when neighbours complain about noise, smells or traffic the council has to act.

Property lawyer Neels Engelbrecht warns that it will be in the homeowner’s best interest to get professional advice before departing from the original use of the property.

Listen to Sapoa CEO Neil Gopal speaking about spiralling municipal rates on the Property Pod: