In terms of the South African common law, the general rule is that a property owner does not have an inherent right to a view. The reason is that a beautiful view is considered a mere incidental advantage of a property and does not form part of the right to ownership. Furthermore, the right of an owner to develop his property outweighs a view, as the right to develop on your property is a right that can be linked to your ownership of that property. Your view from your property is, therefore, a source of delight and not enough to justify a limitation on the neighbouring property’s ownership.
The general rule, however, does not mean that you are without a remedy. The first thing to do would be to look at the title deed conditions of your own property as well as those of your neighbour. In some rare cases, the title deeds include a condition in which the view of the property is protected, making sure that neighbouring properties may not build beyond a certain height, and some title conditions can go so far as prohibiting any or all types of constructions. If your title deed does not have such a condition, it is also possible to have such a condition registered against the title deed, but this must take place by agreement and with the consent of your neighbour, which will not always be an easy task.
The second option would be to check whether the neighbour’s construction is complying with the necessary legislation and regulations. In South Africa, no building work can commence until the building plans have been approved by the local authority and the development complies with all the necessary zoning requirements. Section 7 of the National Building Regulations and Building Standards Act 103 of 1977 (hereinafter “the Act”), provides that the local authority may refuse an application for the erection of buildings if it is satisfied that the building is to be erected in such manner or will be of such nature or appearance that the area in which it is to be erected will probably or in fact be disfigured, unsightly or objectionable or will derogate from the value of the adjoining or neighbouring properties. This section sparks the question whether it indirectly creates a right to a view, but it is a question that still needs to be tested by our courts. This option, therefore, does not protect the view but merely stops the construction and ensures that it complies with the necessary legislation and regulations.
There are also certain exceptions to the general rule that a property owner does not have an inherent right to a view where a view from a property is outright protected. The state is tasked with the protection of public health and safety, and thus it will enjoy priority over the protection of the rights of private property. An example of this is, for instance, where the public interest in the safety and navigation of ships in a harbour justified the substantive protection of the view from a lighthouse. Neighbouring properties to a lighthouse can be restricted in their construction to make sure that the view toward the lighthouse is visible for all incoming ships.
In conclusion, one does not have a right to a view, and this must be considered when purchasing property in a developing area. A view can at any time be obstructed, except if a title condition protects it or it falls under the state’s mandate for protection of public health and safety. If you are unsure about your position, feel free to contact your local attorney to assist in assessing your situation.
Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).
