Page 85 - Q&A 2019/2020

What to do when a business opens next door
to your house

Japie Kruger
March 2019

“Our house is situated in what used to be a quiet residential suburb. Lately
though, more and more businesses have started opening up around us
with houses being converted into business offices. This has ruined our quiet
neighbourhood and resulted in more traffic and other problems in our
neighbourhood. Surely businesses cannot just open up offices in a residential
area? Is there anything we can do?”

From the outset it must be clearly stated that not all businesses being operated
from a residential property is illegal and unlawful. There are a number of aspects
that must be considered to determine whether or not the business may be
operated from a residential property or not.

A first aspect is the title deed of the property which needs to be assessed to
determine whether there are any restrictive conditions registered against the
property which may prohibit the property being used for business purposes.
A further aspect to be considered is the zoning of the property and whether
such property is zoned for residential use or also for business use - and then
further also what type of business use. You can determine the title conditions
of a property at the Deeds Office, or with the assistance of an attorney and the
zoning of a property through an enquiry at your local municipality.

Should there be a restrictive condition or the property be zoned for residential
purposes making it unlawful for a business to operate from the property, you will
have to consult your attorney to consider obtaining an interdict prohibiting the
use of the property for business purposes. In a situation where a final interdict
is sought you will have to prove the following: 1) you as owner have a clear
right; 2) that the conduct of operating the business from the property is causing
prejudice or an infringement of your rights (injury) and; 3) the absence of an
Litigation alternative remedy.

Our courts have found that if a property is used in contravention of its zoning
rights, the use is unlawful and therein lays the injury/prejudice. When considering
an alternative remedy, it must be adequate in the circumstances and must
reasonably afford similar protection as an interdict. As the infringement of using
the property in breach of the zoning restrictions is ongoing and an offence in
law, an interdict has been found to in certain circumstances be the only effective
remedy available. That said, each and every situation must be assessed on the
merits thereof.
A last point that should be mentioned is where consent from the local authority

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