Title Deeds and Zoning

    Construction on a site can be delayed or even stopped due to town planning related aspects. There are numerous of these aspects. The public is usually not aware of them, or sometimes, they deliberately ignore these aspects.

    One of the most common problems is restrictive conditions in title deeds. Before there was a Town Planning Scheme, or SANS 10400 (National Building Regulations), the title deed was used as a tool to control and manage developments. Restrictions found in title deeds include, but are not limited to, the purpose an erf may be used for, the density of an erf, the type of construction materials allowed, building lines, and even the minimum pitch of a roof. Before building plans can be approved and construction can commence, the above-mentioned conditions will firstly have to be removed or amended to allow the proposed development. The approval of a town planning application by the local council can take anything from 6 to 10 months.

    A further common problem is the zoning of a property. Before construction can take place, one must ensure that the property is zoned correctly. The local council has the right to serve the owner of a property with a contravention notice if the zoning is not in place. The contravention notice will give the owner a set time to stop the illegal use of the property and to get the land use rights in order.  The owner of the property can be prosecuted and criminally charged if the notice is ignored. To get peace of mind that the proposed development and use is in line with the existing zoning of the property, one can order a zoning certificate from the local authority. The information on a zoning certificate is technical by nature and it is therefore sensible to consult with a Town Planner should there be any uncertainty. The zoning certificate contains information relating to, amongst others, the existing zoning, the purpose for which the property may be used for, building lines, height, coverage and Floor Area Ratio (FAR).

    One of the problems developers and builders often face is that the owner of the property fails to ensure that there are no restrictive title deed conditions and that the zoning of the property is for the intended use. The result of this can delay or even stop a project from proceeding. It is important to read through the title deed yourself to ensure that there are no restrictive conditions which may come back to haunt you and furthermore to confirm that the proposed development is in line with the existing zoning of the property.

    Any construction project is evidently highly regulated. It is thus part of sound risk management practice for any property owner or project manager to prevent costly delays of construction due to aspects that could have been prevented by the appropriate professional person

    Article written by: Herman Wessels of New Plan Town Planning

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