“The said penalty … was imposed due to the fact that the property was being used in contradiction to its zoning”(extract from judgment below)
Municipalities all have the right (and duty) to regulate land use in their areas, and amongst other sanctions, properties that are used unlawfully or without authorisation can be subjected to rates and charges on a penalty tariff.
These penalties can be steep, and the Supreme Court of Appeal (SCA) has now held that they can be imposed without the municipality first having to change the property’s category on its valuation roll to “illegal or unauthorised” use. All it has to prove us is that it acted in terms of a lawful rates policy.
The house whose rates bill quadrupled
- A house valued (on the municipality’s valuation roll) at R1,650.000 had its monthly rates bill quadrupled from R898-01 to R3,592.05.
- The municipality took this step after notifying the owners of their “wrongful and unlawful use of the property as a student commune, in contravention of the town planning scheme and zoning thereof without the necessary authorisation.” Authorisation was necessary, said the municipality because the commune was a “commercial concern”.
- This after the owner had let out two of their five bedrooms to “students or young professionals” and had continued to do so despite two years’ worth of notices from the municipality to terminate the unlawful use and despite a High Court interdict against the continued contravention.
- The legal challenge mounted by the property owners against the penalties was based on a series of legal arguments, and the Court’s analysis thereof (on appeal from the High Court) will be of great interest to property professionals.
- For property owners, however, the practical punchline is that the SCA upheld the penalty charges, and the owners must pay them.
If your neighbour breaches land-use laws…
That punchline is also important for neighbours because in practice land usage of this nature will often only come to a municipality’s notice when a concerned neighbour blows the whistle.
So, if you think your neighbour is about to open an unauthorised office, commercial or other non-permitted operation next door, and if you can’t settle the matter peaceable over a cup of neighbourly coffee, call in professional help immediately. Just the threat of a quadrupled rates bill could be enough to make the problem go away.
Different strokes for different municipalities
Property owner or neighbour, find out what your local authority’s land use and rates policies are. This particular case related to the City of Johannesburg Metropolitan Municipality, and your local municipality will have its own land-use bye-laws, which could well be less or more restrictive than Joburg’s.
Check the zoning before you buy property
Perhaps the property owner in this case planned all along to let out rooms, and perhaps that extra income is what put this particular house within their financial reach. If so, the mistake they made was in not checking the local zoning upfront.
Knowing the zoning and building restrictions in your chosen area is also vital if you want to avoid unpleasant surprises, like a new neighbour opening up a guesthouse or building a triple story which cuts off your sea views. Ask your lawyer to check for you before you offer.
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
[This article was originally published in the LawDotNews May 2022 newsletter. To view the full May 2022 newsletter please go to this link.]