November 15, 2017
“You can be a good neighbour only if you have good neighbours” (Howard E. Koch, playwright)
You decide – for whatever reason – that your neighbour’s new guesthouse is definitely not first prize in your sleepy and peaceful suburb, so you investigate.
You find out that the local municipal zoning scheme doesn’t allow anyone to trade as a guesthouse without a special departure permit, and that your neighbour doesn’t have one.
What are your rights and what must you prove to get assistance from our courts? Must you prove, for example, that you have suffered some form of damage or is it enough to prove only the lack of a permit?
A recent High Court decision illustrates, and would-be guesthouse owners as well as their neighbours should take note.
Shattering the peace – wild parties and nuisance guests
- Residents of a quiet suburb with ‘single residential’ zoning asked the Court to interdict their neighbour from running a guesthouse next door.
- They alleged a number of nuisance disturbances including a wild party of over 50 people “drinking, swearing, yelling and urinating in the street”. That all-nighter was, they said, only temporarily interrupted by a visit from SAPS at 3 a.m. – it finally ended at 7 a.m. after a second police intervention. Other allegations related to disruptive behavior by guests arriving and departing in buses, taxis, trucks and construction vehicles.
- The guesthouse was being operated without the special permit required by the local zoning bye-laws.
- The guesthouse owners said that they had twice applied for special permission in the correct format and had twice been given consent to continue operating the business pending final approval. This was hotly disputed and in any event, held the Court, “such informal authority cannot be the authority … envisaged by the relevant ordinances and regulations in this regard. After the proper procedure had been followed, and in particular after proper notices have been given to the property owners in the vicinity of the guesthouse, and notices in the local Newspaper, only then after proper consideration may consent be granted for the special use as a guesthouse. Up until that stage the guesthouse on the property is being run illegally.”
- Nor did it help the owners to deny the allegations of nuisance behavior by guests. Such denial, said the Court “does not detract from the continued illegality of [their] use of the property.”
- The owners also argued that a complaining neighbour has no right to ask for a court’s intervention without proving that it suffered some “special damage”. The Court disagreed – zoning schemes confer rights on affected property owners and they “are entitled to require that neighbouring owners comply with the applicable zoning scheme”. That’s an important decision – it makes it a lot easier for affected neighbours to get redress.
- The Court also rejected the guesthouse owners’ application for a suspension of the interdict pending the outcome of their permit application.
- The end result is that the guesthouse must close (after a short grace period to allow longer term residents to find alternative accommodation).
Opening a guesthouse? It boils down to this …
Each municipality will have its own bye-laws in regard to exactly what is and what isn’t allowed in each zoning category. Where a formal municipal permit is required to operate a guesthouse, that permit must be applied for and must be granted before the business opens. Otherwise your neighbours can ask a court to close down you down, proving nothing more than the lack of a required permit.
First prize is always to negotiate all your neighbours onto your side from day one, and in any event it’s worth getting legal help for your permit application to ensure your position is unassailable.
And a final note for suffering neighbours
Stand up for your rights, although of course even if you are 100% in the right, going to war with your neighbours should be the very last resort – there are no winners in a fight like that. But if a polite request to “please close your doors” or “please stop disrupting our peace” doesn’t help, seek legal assistance immediately.
P.S. What about Airbnb?
There are grey areas around how zoning restrictions apply to short-term lets in South Africa, and municipalities all have their own requirements for bed and breakfast and other types of guest accommodation. Take advice on what your local council’s requirements and limitations are.