The South African property world has in the last decade seen a proliferation of litigation regarding '˜infringements and '˜disturbances, says Tony Clarke, Managing Director of Rawson Properties. Many of the court cases, he says, indicate that the tolerance, courtesy and good manners for which South African were previously well known (at least in some circles) are now almost forgotten virtues.
Fortunately, says Clarke, although there is a huge emphasis on human rights in South Africa today (which certain lawyers have been quick to capitalise on), sanity still tends to prevail in the judgments given by the more senior courts.
These remarks by Clarke were sparked off by a High Court decision in an Eastern Cape case (Wingaardt vs Grobler).
What led to this case, says Clarke, was that a tenant in a Jeffreys Bay home set out to help a local charity by decorating his home and garden with coloured lights, playing Christmas carols, erecting a Christmas tree and having a '˜live Father Christmas on duty several hours a day to hand out presents to children (which the parents or well-wishers had previously delivered to the house).
The neighbours, who are pensioners, then objected on the grounds that the festive atmosphere, crowds of people and congested traffic in the street had made the precinct 'an absolute nightmare in which to live'. They therefore applied for an interdict preventing such functions in future.
The court ruled that the '˜nuisance of the service being provided to the community could not be said to be an invasion of the neighbours property or other rights, nor was it that irksome. The court said that it did much to promote goodwill in the area and had helped support a worthwhile cause. Furthermore, it took place only three weeks a year. The interdict preventing further such functions was, therefore, refused.
Clarke says that this judgment, which many had thought would go against the defendant, re-established the accepted principle that neighbours have to live with some disruption of their peace from each other from time-to-time.
'Where these situations become more difficult,' says Clarke, 'is in high density sectional title schemes. Here in South Africa we have regrettably had many cases where unacceptable rowdy behaviour, prohibited by the schemes Conduct Rules, has made life unpleasant for other occupants on an ongoing basis. It takes a very strong managing agent and/or trustees to put matters right in cases like this - and regrettably they do quite often fail'
Clarke adds that it is the duty of any agents selling a sectional title unit to investigate how well the Conduct Rules of the scheme are being adhered to and to warn a prospective buyer of possible rowdy behaviour. The few schemes that have '˜acquired a reputation, he says, are usually known to all estate agents in their area. Not to warn a prospective buyer of possible problems, he says, could be regarded as misrepresentation and/or non-disclosure and therefore unethical and against the estate agents code of conduct.
'In the long run, however, the prospective buyer has to rely on his own investigation. Not only should he get a copy of the schemes finances but he should visit on a Friday or Saturday night to check on noise levels and unruly behaviour,' says Clarke.
For further information contact Tony Clarke on 021 658 7100 or email tony@rawsonproperties.com.
