Good DayI was considering subdividing my...

Asked by Stewart Green on 22-05-2019 12:55:38
Question posted in the Property Law category relating to Gauteng
Question value: R 250.00

Good Day

I was considering subdividing my normal residential house to let out the two sections to tenants while I stay in the small granny flat and want to know if this is permissible in terms of the law and if so, are there any permits or approvals needed from the municipality?

Kind Regards

Stewart

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Answer to the Question

Posted by Att. Patrick on 22-05-2019 14:40:28

Hi there Stewart and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

When people talk about subdividing their property, normally they mean physically cutting the property (the ERF) in to two pieces and then transferring (selling) one of the pieces to somebody else. That process is registered at the Deeds Office, and the one property then becomes two separate properties.

But I don't think that you're talking about that. You're talking about an imagination subdivision in your house where you can simply rent out half of your house to tenant A, and the other half to tenant B.

In law, there is nothing stopping you from renting out your house. You are not running a business, and you don't need a licence to do so. (If you are renting a room like a B'nB or like a hotel, then you might be running a business and you might need a licence to do so!) You can see that a long term rental (like 6 months, or a year) is very different to short term rentals (like 1 night or 4 nights)

There is therefore also nothing stopping you from renting out half of your house to tenant A, and the other half to tenant B. However, you should ensure that these are longer term rentals instead of short term rentals.

If you have an existing Granny Flat on the property, then you can simply stay there.

However, if you want to build a Granny Flat on the property, then you will most certainly need to comply with building regulations, and you'll need to submit plans for approval by the municipality, and you might need your neighbours permission. So that might be a nightmare.

But as long as you're not actively running a B'nB business from your house, there is no permits that you need. Just be aware that if you move into the short term rental arena, you will most probably need a business licence to do so. You would also need to comply with the regulations dealing with tourism, etc.

Have a look at this recent article: Hanekom pours cold water on Airbnb concerns

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Information provided by client

Thank you for your answer. Regarding your comment on needing approval from neighbours being a “nightmare”, if I submit plans to the municipality, do the neighbours have to agree with the new granny flat before council will approve the flat? What if one of the neighbours just won’t answer or responding whether they approve or not? So to what degree can the neighbour’s block the process of getting a granny flat approved is what I am wondering?

Answer to the Question

Posted by Att. Patrick on 24-05-2019 07:53:54

If your intended plans fall within your building foot print of your property (e.g. you are not building closer than 3m from the property boundary - different municipalities have different distances) and the intended building complies with the limitations described in your Title Deed, then you won't need neighbours permission.

But, if you want a departure from the above, then you will need neighbours permission.

Your Title Deed should record if you are allowed 1 or 2 dwellings on your property.

There are always ways to deal with this, for example, building the granny flat as an extension of your house, linking to the house with a garage or store room so that the granny flat is technically not a stand alone structure, but part of the main house (therefore there is still only 1 house on the property) but sufficiently disconnected to be separate. 

The neighbours can block your building, but you could always go to court to get permission if your neighbours are being unreasonable in saying no. 

But they will need to be acting unreasonably in order for you to succeed in court. 

If you want to building over the building line (the 3m piece I said above) and your neighbours said No, I don't think that there is much that you can do. Most people in that instance re-design the plans so as to comply.

Remember, the whole idea of these municipal building regulations and title deed restrictions is that everyone must comply for the benefit of the entire neighbourhood.

My advice is that you speak to a town planner and an architect to find out exactly what limitations there are in your area. 

Answer Accepted

This answer was accepted on 24-05-2019 14:32:28

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