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A game of homes

31 July 2014

The recent Supreme Court of Appeal (SCA) judgment of Robarts v Antoni NO (327/2013) [2014] ZASCA 64 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.

Save your sea view!
Saving your sea view could be as simple as agreeing with your neighbour to register a “height servitude” – but take advice before you agree to anything relating to your property to make sure that your agreement is in fact valid and enforceable.

Full judgment

Jack Crook (LLB Lond, LLB Rhod) is the author of LawDotNews, a monthly newsletter which is personalised and e-mailed to your firm's clients compliments of your firm. DotNews has also just launched a new suite of “Marketing and Communication Strategy” services incorporating the provision of Websites, Blogs and Social Media services, integrated with your client newsletters. Readers are welcome to contact Jack, or visit his web site at www.dotnews.co.za for further details.

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