Sub-divide and ruled / Duet housing

Most people interested in properties and specifically property developments are probably aware that the City of Cape Town (and certainly other local authorities) nowadays allow a second residence to be built on a single residential zoned property and may be inhabited.

Up and until 1 July 2016, such owner would either have to apply to the City for a consent use or to have the property rezoned to a category which permits of a second dwelling. These applications would not necessarily have succeeded and were rather time consuming and expensive.

However, since the aforementioned date, each owner now automatically has the right to build a second home on his property as part of the government’s efforts topromote urban densification . The City of Cape Town recently announced that they are in the process of putting the processes in place to allow up to three homes to be developed on each residential estate.

Although the right to construct a second (and perhaps even a third house) on a residential erf is now automatically the following challenges should be kept in mind:

  • First, there is a possibility that the title deed of the property in question may contain a condition prohibiting the erection of further dwellings on the property. Such a condition is legally stronger than the new automatic right and a process would have to be followed to abandon the condition of your title deed.

Having to follow such procedure would not only be long winded but is also expensive as the removal of restrictive conditions did not mean the simplest process and the owner will be advised to seek the assistance of a conveyancer or a registered town planner to undertake that process. Should the local authority not support the application the owner may even have to approach the High Court.

  • Next, the owner must also be aware that when the second dwelling is completed, it may not be sold or sold as a separate dwelling unit, since both buildings are kept under one title.

There are two ways to overcome this particular problem;

  • To subdivide the Erf and so create two, or more separate inheritances, each with its own number and title, whereupon the owner will be free to sell and transfer ownership of any of those. The problem with this is that there is no automatic right to subdivide your Erf. You will have to apply to local authority for permission to do so and this process is also lengthy and expensive. You will, for example, have to install services (water supply; sewers electrical supply). If the title is subdivision to your property prohibits, then and mentioned in item 1 above, you will be obliged to also apply for the removal of that condition thereby adding further time and expense to the process.

The applicant will also have to pay bulk service charges for the newly created erf and provide a separate service connection to the city’s services network.

These costs are prohibitively expensive and are not really viable.

  • The second option would be to convert ownership of the property to sectional title ownership. No consent from government roads is required for this, and conditions are rarely imposed in title deeds that prohibit such conversion. With such a conversion, the challenges associated with a physical subdivision are mostly addressed. The process is not only relatively quick but also not very expensive. The conversion to sectional title can either be undertaken if the construction of the second home is completed, or already before any construction has begun. In the latter case, a “right of extension” is simply created that can be sold and transferred. The latter involves the process of creating the right to build the second home, with properly detailed building plans submitted by the proposed home at the deeds office, ensuring that the new home will look no different than the building plan. By using exclusive areas of use, each owner’s rights to exclusive use of portions of the yard are protected for the garden or swimming pool.

If Sectional Title is to be preferred the Sectional Titles Act will have to be compiled with which means that a Body Corporate will need to be established in terms of the Sectional Titles Schemes Management Act and the registration of such scheme with the office of the Ombud for Community Housing Schemes.


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