Secure your views

• South Africa

• Real estate

10-07-2017

A common issue that arises the real estate industry is the question of securing a view. The issue has led to several disputes as to who has the right to enjoy the view and what the legal repercussions are if the view is interrupted.

The right to an unrestricted view does not automatically vest in terms of the common law and that the appropriate manner in which to secure such a right is by the registration of a servitude against the title deeds of the properties in the Deeds Registry. This was confirmed in the Baartman v Stubbs and Others (15523/2013) [2015] ZAWCHC 29 decision of the Western Cape High Court.

One of the main attractions to the dominant property (property enjoying the benefit of the servitude) was its “pretty” sea view and, in order to protect the view, conditions were registered against the title deeds of the dominant and servient (property burdened by the servitude) properties. The Court was required to interpret the condition, namely '[n]o structure whatsoever nor tree shall be erected or planted on the property which would obstruct or partially obstruct the sea views from the existing structure on Erf 985 Hout Bay.'

Baartman, the owner of the dominant tenement, claimed that her view of the sea, the beach and the village across the bay were being obstructed by a wild olive tree that was growing on the servient property. At the time the parties purchased the properties the wild olive tree had already been planted and photographic evidence at the time of creation of the servitude condition shows that it did not obstruct the sea views. The tree had though, over time, grown substantially and increased in size.

The parties had engaged the services of a tree expert in an attempt to resolve the problem and the servient property owners had removed two trees they had already planted but felt that since the wild olive tree had already been planted when the condition was registered it did not fall within the domain of the condition. They presented Baartman with a quote for trimming the whole tree and she then applied for an order to enforce the servitude condition arguing that it also applied to the wild olive tree.

The Court considered the law relating to the interpretation of servitudes and the importance of establishing the intention of the parties at the time when the servitude is created. Where the wording in the servitude agreement is clear and unambiguous it should be given the ordinary grammatical meaning and the Court should not be concerned with the surrounding circumstances.

However, the Court was mindful of other considerations that must be considered when interpreting a particular condition, such as the traditional view that a praedial servitude may not impose a positive duty on the servient tenement. It was also noted that our courts are more inclined to interpret servitudes narrowly or restrictively and in a manner which is least burdensome for the servient property owner.

The servitude imposed by the title condition is a right to free prospect (servitus prospectus) which allows the owner of the dominant tenement the right to an open view and limits the rights of the servient property owner to obstruct the view with buildings or trees. In the case Kruger v Downer 1976 (3) SA 172 (W), after discussing the servitude prohibiting a neighbour from building higher and the servitude prohibiting the darkening or obstruction of light by any building, the Court noted that in our law “the right to free prospect is more extensive, for it not only includes the light from the heavens above, but also a free and unobstructed view along the earth in a straight line, whereby the prospect must be left in the same condition it was in at the time of creating the servitude”.

The principles of general interpretation by the Courts was considered starting with the actual language used and how it is to be understood in the context and purpose of the condition. Although it may be necessary to correct an error in the language used a court should be wary of altering the words actually used and must, “guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used” as cautioned by the Supreme Court of Appeal in Natal Joint Municipality Fund v Endumeni Municipality 2012 (4) SA 593.

The court concluded that, on considering the title deed condition, the word “would” points to a future state of affairs, places the emphasis on the sea views and makes it clear that the purpose of the servitude is to provide unobstructed views of the sea ‘as such views existed at the time of the creation of the servitude'. The condition was therefore intended to include trees that had already been planted when the condition was registered and those that would still be planted in future. The servient tenement owner was thus required to trim the wild olive tree in line with the servitude.

This case emphasises the importance of legally securing the right to an unrestricted view by registering it against the title deeds of the properties using clear language.

Gerstle and Others v City of Cape Town and Others (A484/2015) [2016] ZAWCHC is another notable case which expresses the necessity to legally secure a right to a view. The properties which were the subject of this litigation formed part of the Mill Row Housing Development (‘Mill Row’), situated at Sunset Beach in the Western Cape. The development comprised seventeen properties - back row double storey and front row single storey residential dwellings. The City of Cape Town (COCT) granted approval for second storeys to be constructed on two of the single storey front row properties which would have the effect of obstructing the views enjoyed by the back-row dwellings.

The unhappy owners applied to court for the setting aside of the Municipality’s decision arguing that the planning approval should have been refused because the application did not comply with the relevant legislation, the zoning scheme - which classifies the development as a Group Housing Scheme - would not authorise the alteration, and that there was a legitimate expectation that the front row would not be entitled to a second storey.

The first Court decided that COCT had assessed the proposed plans carefully in relation to their consistency with the architecture of Mill Row and found them to be compliant with the zoning scheme; that there were no restrictive title deed conditions, servitude rights, a home owners association with a constitution which regulated height, nor a site development plan, accordingly, any intention which might have been professed by the developer and architect to retain the first row of Mill Row as a single storey structure had not been secured as a registered right; that the definition of group housing scheme could not be elevated to a status that prohibited the raising of the front row dwellings to double storey; and there was no legitimate expectation that they would not be raised to double storey.

On appeal, the High Court followed the Constitutional Court’s approach set out in Turnbull-Jackson v Hibiscus Coast Municipality 2014 (6) SA 592 (CC) - that “the level of scrutiny by the decision-maker will depend on the facts of each case.” and in Bato Star Fishing (Pty) v Minister of Environmental Affairs 2004 (4) SA 490 CC, - that “a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government” but should also “not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.”

The unhappy owners core argument was that a reasonable decision maker would not have approved the construction of a two storey building in the front row of Mill Row and that the COCTs report did not take sufficient account of the impact of the proposed additions and the effect on the “harmonious architectural entity”. The initial developers intention was to “ensure that the harmonious architecture would also function to ensure an equal share of the sea view for all units” and that ‘two sacrosanct fundamentals were applied” when designing the development, in “that each building was to have a view of the sea-shore on the one hand and a view of Table Mountain on the other’.” and the “decision to permit double storey dwellings in the front row would have an effect that owners in the back row would be ‘completely hemmed in’ … and they would lose their entire view as well as access to sunlight, resulting in house damp, moisture and mildew.”

The appeal court held that “viewed externally, Mill Row did not comprise of a harmonious architectural entity and that, at best … when viewed from inside, it was a ‘modest attempt’ at creating such an entity”. While they sought to rely on ‘two sacrosanct’ principles, which they argued formed the basis of the development, the developers had not imposed any legal limitations on the future development of the property. The history of the zoning of the property was also considered relevant as, in 1982, the predecessor of COCT authorised the amendment of COCTs town planning scheme from Special Business to General Residential subzone subject to height restriction of three storeys.

The High Court held that the evidence led on behalf of COCT supported the conclusion that it had carefully considered all of the relevant reports and objections and that the recommendation had been substantiated. The Bato Star judgment indicates a judicial recognition of the need for respect and extreme caution before intervening with a decision made with the necessary expertise and with detailed, plausible and justifiable explanations for the decision. The Court was clear that there could not be a “derogation of value” solely based on a loss of view when the alteration complies with the provisions of the relevant legislation, unless the nature or appearance of the building is so unattractive or intrusive that it exceeds the legitimate expectation of parties to a hypothetical sale.

The court considered it significant that only one owner was able to make any claim to having been informed, at the time she contacted an official of the COCT, that it would not be possible for front row houses to be raised to double storey, and held that in general courts have approached a concept of a “substantive legitimate expectation” with considerable caution. Thus it was held that the justification for a substantive legitimate expectation was both vague and not at all specific and the appeal was dismissed.

This case again emphasises the importance of taking legal steps to secure property views. This must be done by the registration of a servitude against the title deeds of the property. This is done by your conveyancer when drawing up the sale agreement and subsequent transfer of the property.