It’s tempting, when you own a property, to fall into the trap of believing that you can do anything you please with it. However, all properties in South Africa are subject to zoning and other local regulations. Just as importantly—and often overlooked—there may also be restrictions outlined in the title deed.
In this article, we’ll unpack the types of property restrictions that you need to be on the lookout for, and where to find out about them when you buy or renovate your property.
Does my title deed include property restrictions?
In addition to the title deed being the legal document confirming property ownership, it also sets out any rules and restrictions specifically associated with it. For example, the title deeds of Reconstruction and Development Programme (RDP) homes restrict owners from legally selling their properties for eight years without special approval.
Title deeds also indicate common or other servitudes, such as the rights municipalities or utilities may have to access or use part of the property. They also specify who has the right of way through shared driveways – like panhandles - that lead to multiple properties.
In addition, when a suburb is developed, the title deeds can include specific restrictions designed to maintain the character or aesthetic of the neighbourhood, such as preserving green spaces or sea views. In some instances, title deeds can even specify whether or not the property can be used for commercial purposes.
Title deeds are also a living history of things that “happen” to the property. For example, every time it is bonded, this is recorded on the title deed. No property can be sold until the bond on that property has been settled.
Heritage and legacy
The title deed and building plans will give you an indication of the age of the building on your property. It’s important to know that in South Africa, and in terms of the National Heritage Resources Act of 1999, any building older than 60 years is automatically protected as a heritage home. This means that any alterations must be approved by the relevant provincial heritage resources authority (PHRA).
Estate planning, inheritance and usufruct
Moving to the present, when people draft wills and plan their estates, they are entitled to stipulate what happens to, or with, their properties when they die. For example, they can leave the property to their children with the stipulation that the surviving spouse can use and/or live in the family home for the rest of their natural life, or for as long as they like. A person’s being able to legally occupy a property even if they do not own it is known as usufruct, and the details of the arrangement are included in the title deed.
Word to the wise: With the growing trend for people to live together, the person who owns the property that they live in must stipulate what happens to it when they pass away. If they do not, and/or if they don’t have a will, the Intestate Succession Act will apply. This stipulates that their closest living relatives, in a specific order, inherit the property, which can result in life partners or other caregivers losing their homes.
What about body corporates and homeowners’ associations?
When you buy a property in an estate or complex, in addition to the usual community rules, there can be additional restrictions recorded on the title deeds. For example, limitations on subdividing the property, rules stating that no more than 50% of the stand may be built on and/or that the architecture must conform to certain conventions. With the trend of establishing conservancies, title deeds may include conditions that ensure the ongoing protection of natural resources like coastlines, wetlands or wildlife habitats.
How are property restrictions influenced by zoning and town planning?
Countrywide, land use and zoning are governed by the framework set out in the Spatial Planning and Land Use Management Act (SPLUMA) of 2013, and then on an area or regional level, by local development frameworks and municipal regulations.
Pockets or zones of land are designated for specific uses: residential, commercial, industrial, agricultural and mixed. These are not a one-size-fits-all set of regulations. Zoning and related restrictions vary from province to province and from urban to rural areas. For example, heritage-related restrictions may be more complicated in the Mother City (Cape Town), which is home to South Africa’s oldest documented settlement. Metropolitan areas often have stricter zoning restrictions to regulate high-density development and commercial activities, while rural areas, on the other hand, may be more flexible and/or include environmental restrictions.
All towns have a general plan or guideline that demarcates residential, commercial and industrial as well and agricultural areas. Town planning schemes ensure the community's general welfare and enhance the area's appeal, and incorporate maps showing the land use zones as well as other related information. Any member of the public may access a town’s plan; these are usually available from the municipality’s website or urban planning office.
In addition, local authorities will also control the types of economic activity and therefore also the types of buildings in the different parts of town, including, for example, residential developments and shopping malls.
Town planning schemes regulate population density by dictating the minimum size of a stand and the number of dwellings that you can build on it, along with the number of storeys, the total floor space in the building and, as already noted for other developments, the percentage of the stand that can be covered. Each town also stipulates the minimum distance between the boundaries of the property as well as the building lines, i.e. the boundaries of the property, buildings and parking.
Can you get property restrictions changed or lifted?
The short answer is yes; you can get permission to deviate and even change the restrictions on a property. Of course, this is often easier said than done. In a residential area, you can apply to the municipality for permission to build outside the building lines. When you do any suburban building, alteration and/or major renovations, this would form part of your building plan submission.
However, when it comes to zoning and other restrictions, you will have to apply for a High Court order, giving valid reasons as to why the restrictions should be lifted. If the court agrees with your argument, they will grant an order authorising the lifting of restrictions. This change will be noted on the title deed and in the town’s planning scheme.
Top Tip: If you are buying a property with restrictions that you believe need removing, you can include the successful removal of those restrictions as a condition in your Offer to Purchase.
Have more unanswered questions? Here are some related questions – and answers – that might help…
Do you need planning permission for internal alterations in South Africa?
Generally, no, you do not need planning permission for internal alterations. However, if the alterations could affect the structural safety of the home, e.g. altering a load-bearing wall, you will need permission. It’s always best to check with your contractor and the local authority before you start work.
Can a house be sold without approved plans?
Yes, a house can be sold without approved plans. However, it’s not usually advisable to do so. Read more about whether approved building plans are needed when selling in SA.
How many dwellings can I have on my property in South Africa?
The number of dwellings that you can have on your property will depend on the zoning and related restrictions set down by your local municipality. Check with your local authority to find out what is allowed in your neighbourhood.
