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August 2014: A Game of Homes – Sea View Wars

Newsletters



A recent Supreme Court of Appeal (SCA) judgment underlines once again the need to properly record any and all agreements relating to your property.

Sea views and servitudes: Neighbours at war

  • Cape Town (Bantry Bay) neighbours - let’s call them A and B - whose houses “enjoy spectacular views of the Atlantic Ocean which contribute significantly to their huge value” came to blows when A (the neighbour in front of B), started building without municipal plan approval and in breach of restrictive title deed conditions and zoning scheme requirements.

  • At a “settlement” meeting, B agreed not to object to the planning applications for departure and title deed amendments that A needed.

  • According to B, A had then (in exchange for these concessions) orally agreed to register various height servitudes over his property in favour of B’s property.

  • Subsequent attempts by the parties to agree on a written recordal of this oral “agreement” failed after a long saga of disagreement over draft “agreements”, offers and counter-offers. In the end B relied on a “draft agreement” drawn up by A but signed only by B. A’s version was that this partially-signed draft was in fact no more than a rejected offer.

  • Nevertheless A continued with his development to completion, unhindered by any objection from B.

  • But when B then tried to enforce registration of the servitudes, A denied having agreed to any specific departure or details of any height servitudes, forcing B to turn to the High Court for assistance. He won his case and the High Court ordered A to register the servitudes.


In writing or invalid

“A verbal contract isn't worth the paper it's written on” (Samuel Goldwyn)

On appeal however, the SCA disagreed, holding that B had failed to prove the existence of a valid agreement by A to register a height servitude. No oral agreement had been proved and in any event our law requires any agreement for the alienation of “any interest in land” – such as the exchange of rights in this case - to be in writing and signed by both parties.

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