Buying property: don't forget to check the restrictive conditions - Buying, Advice
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10 Jan 2017

Buying property: don't forget to check the restrictive conditions

Many buyers have purchased their dream home, only to realise that the plans they had to add another storey, or to subdivide the property, can’t be realised because of restrictive conditions they weren’t aware of.

Essentially, Swain says restrictive conditions, listed in the property’s registered title deed, limit owners’ use of the property in some way - in order to protect the amenity and character of an area.
“The majority of buyers ask questions about the condition of the plumbing, the maintenance conducted and so forth, but completely forget, or don’t know to ask about the restrictive conditions attached to the property,” says Bruce Swain, MD of Leapfrog Property Group.

“It can not only cause frustration, but could lead to legal and financial ramifications if the new owners make structural changes that are not in compliance with the restrictions listed.”

What are restrictive property conditions?

Essentially, Swain says restrictive conditions, listed in the property’s registered title deed, limit owners’ use of the property in some way - in order to protect the amenity and character of an area.

Common restrictive conditions include:

- That the property can’t be subdivided.

- That there is a set height limit, i.e. the building may not be more than two storeys tall for example.

- Buildings in residential areas may not be used for business purposes.

- That only a certain percentage of the erf may be covered.

- In the case of heritage properties or areas, only certain colours may be used on exterior walls, or only certain kinds of fences and boundary walls may be erected

Title deeds are normally retained by the bond holder, so buyers often never see them, says Swain, however, they are within their rights to obtain a copy of the title deed from the Deeds Office or from the bank or financial institution that holds the bond.

Can the restrictive conditions be amended?

It is possible to get restrictive property conditions lifted or amended - but be prepared for a fairly complex legal procedure.

“Even if the proposed developments or alterations don’t require rezoning or the complete removal of the restrictive conditions, it’s still necessary to obtain the local Council’s permission, a Consent Application will need to be completed, and I’d advise buyers or new owners to get a professional’s guidance to ensure the process is technically and legally correctly completed,” says Swain.

There is a cost attached to the application. Below are the costs levied by the City of Johannesburg, but note that these may vary from province to province - the exact fees can be obtained from the local council:

 Application:

Cost:

 Relaxation of Building Line

 R323

 Consent

 R567

 Second Dwelling

 R567

 Subdivision

 R425 plus R17 per portion over 5

 Division of Land

 R3 217

 Consolidation

 R274

 Township

 R3 757

 Rezoning

 R3 757

 Site Development Plan

 R567

 Removal of Restrictions

 R600

 Simultaneous Rezoning and Removal of  Restrictive Conditions

 R2 000


“Information remains a buyer’s greatest resource - while it’s possible to get restrictive conditions repealed or altered, it’s a time-consuming, complex process, and it would still save buyers a lot of trouble down the line by simply finding out what restrictive conditions pertain to a property before purchasing,” says Swain. 


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