Urban delinquency is a term coined by our offices to describe the growing trend by occupants and owners of ignoring or openly violating municipal by-laws, health and safety laws, environmental laws, building laws and zoning laws in densely populated urban areas.
This article explains how some of the more typical violations of these important laws might be addressed, particularly by a collective of persons such as a sectional title body corporate, church, rates payers’ association, or homeowners’ association. Such an association will have the legal capacity to approach the court provided that it has an interest in maintaining the safety, security, cleanliness, health, heritage and ultimately the value of the area in question.
It is unlawful for any property owner, occupant, or builder to engage in construction activities that alter the structure of any building at a property where no municipal approval for the construction or alternation was obtained at all, or to the extent that the construction underway is not carried out in accordance with the municipal approval obtained.
An association’s first port of call when this occurs is to report this to the municipality, which should send a building inspector out to compare the buildings on site to the approved building plan on file of the municipality. If it is found that the instruction is unlawful in the sense that it is not approved the municipality should issue a notice to the owner/tenant/builder to cease the construction (alternatively to demolish the construction).
If the building has long since been built the municipality should be issuing a letter to advise the property owner that the building on site is non-compliant for a lack of approved plans. After the first notice is served (giving the owner time to remedy the problem) a second site inspection is done and if compliance has not been forthcoming a second notice should be served advising that legal action will ensue if the “stop” notices are not complied with.
If, after the second notice, the unlawful construction continues, the municipality would ordinarily instruct attorneys to bring a court application to compel compliance in whatever way necessary (which might include obtaining an interdict to stop further unlawful construction, demolishing a part of the structure that is unapproved, or for any other appropriate remedy).
To the extent that the municipality is unwilling or unable to approach a court, an association of the nature described herein would have the necessary standing to approach a court of its own accord (independent of the municipality) in order to compel compliance with the relevant building laws. This is because the surrounding property owners have a right in law to protect the value of their own properties and the safety and cleanliness of their surroundings, and buildings that are built unlawfully pose a threat to that value and can also sometimes pose a threat to the safety and hygiene of the area concerned.
Where the requirements for the relief sought in the court papers can be proven by the association concerned, the courts will usually not hesitate to grant appropriate relief, including (in extreme cases) the demolition of unlawful buildings.
Zoning laws, also known aspermitted land use laws, limit a property owner’s use of the property to certain uses. Common examples of ‘zonings’ include residential, industrial, hotel, bed and breakfast, commercial / office. A property’s zoning can be determined from a zoning certificate obtained from the municipality. Where a property owner or occupant is using the property in contravention of the property’s zoning much the same process as explained above in relation to building laws is available to an aggrieved homeowners’ association in the area.
Upon having reported the violation to the local municipality, “stop” notices should be issued by the municipality to demand compliance with the relevant laws, and if after the relevant notices have been issued compliance is not forthcoming the municipality would normally instruct attorneys to bring a court application to compel appliance and stop the violation.
As above, to the extent that a municipality can not or will not take this legal action, an association such as a rates payers’ association could do this of its own accord in order to enforce its own rights in respect of compelling the cessation of the continued violation the zoning laws of the area in question.
A homeowners’ or rates payers’ association could ask the court for any remedy (provided that it is just and equitable based on the law and facts plead). It is sometimes necessary to be creative in terms of the order sought to achieve an effective and sustainable solution to the problem.
For example, where a business is operated unlawfully from a residential premises and despite many warnings from the municipality no legal action has been taken to compel it to stop, an order might be sought from the court approving the sheriff to remove all of the furniture and fittings from the premises that allow the unlawful carrying on of business activities to continue.
Another remedy at the disposal of a homeowners’ or rates payers’ association is that of demolition. If a municipality brings an application for demolition in term of Section 21 of the National Building Regulations and Building Standards Act, and the municipality has shown the court that the requirements set out for demolition in that Act have been complied with, the court has no discretion but to grant that order for demolition. The position is quite different however, when a home owners’ or rates payers’ association brings such an application, because it is not brought in terms of that Act but rather in terms of the common law relying on a breach of that Act to show where the harm is coming from. In a case like this a court has a discretion to order demolition but is not obliged to do so and therefor although this remedy is available to any aggrieved homeowners’ or rates payers’ association the situation needs to be relatively extreme before a court will grant you this remedy (obviously because of the prejudice that will result to the property owner and the financial loss that they will suffer as result of the demolition). However there have been many successful orders of this type granted in appropriate cases and a residents’ association should not fear seeking this remedy purely on the basis that it going to cause harm to the property owner concerned.
Termination of Electricity/Water Supply
In some cases, it might be appropriate to apply to the court for an order that the municipality cease the supply of electricity or water to a particular property. This might address a number of issues at the property concerned, such as where there are continued water leaks or sewer blockages coming from that particular property which are never dealt with by the owner, or where it is a business operating unlawfully with a reliance on the supply of electricity (such as a printing press or a bakery). This remedy is a little more complicated than the others referred to above because of the relationship between the landlord and the occupant of the building, and the relationships between the owner and the municipality on the one hand and the municipality and the occupant on the other, however in appropriate cases this kind of remedy can be an effective tool in bringing a non-compliant owner or occupant to heel.
Securing the Property After Removal/Eviction
When attempting to obtain a court order that is intended to provide a long-lasting solution to a community, one must bear the sustainability of that order in mind. If one is seeking to prevent continued unlawful activity at a particular premises after obtaining an order that those activities must cease and removing any furniture or fittings that enable that carrying on of unlawful trade, one must also be mindful that you may need to secure the property in some way or another to prevent invasion or the later uptake of such unlawful again.
A structural interdict is where a court order requires ongoing check up’s and reporting back to court to ensure continued compliance with said court order. It might be appropriate to ask the court for an order that the municipality inspect the property at certain (unannounced) times and file reports with the court confirming the status of compliance with the court order, and it might be appropriate to ask for an order that in the event that future acts of non-compliance are detected that certain consequences will follow immediately without the applicant having to return to court again.
Associations of affected persons are well placed in law to deal with issues of on-going violations of building, zoning, health and safety laws and by-laws, by holding the guilty party responsible through a court order. The ‘magic’ in these orders is applying for and obtaining the most effective relief possible, that is aimed at preventing future infringements.
These kinds of matters are intrinsically tricky because you are normally dealing with a person/organisation that is openly flouting the law and doing so with impunity. Experience in handling these kinds of matters is a must in order to ensure proper and effective vindication of the rights of the affected persons.
By Chantelle Gladwin-Wood and Maike Gohl
26 September 2019