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Buyers, estate agents must do homework before considering a property for business purposes

Residential properties are often marketed as “perfect for a home office” or “ideal for business use”, but often these words are false advertising as not all residential properties are zoned for business use.

Both buyers and estate agents are therefore warned of the dangers associated with not checking whether a property they are buying or selling for commercial use is zoned correctly.

PJ Veldhuizen, chief executive of Gillan and Veldhuizen Attorneys, which has a specialist conveyancing and property law division, says the zoning scheme regulations are aimed at achieving systematic and rational development of land and land use in an area of jurisdiction.

The purpose is to achieve a proper balance between competing rights and the interests of residents.

Part III of the zoning scheme regulations serves to determine use zones and the uses to which property in those zones may be put. Regulation 3.11 allows for the practice of a profession or occupation from home, she says.

Professionals such as lawyers, doctors, dentists and architects often opt for this type of property as it is most suitable to their commercial needs.

Veldhuizen says in a recent case in Grahamstown the court ruled that the owner of a day spa, who was operating her business from her home, was in contravention of the zoning scheme regulations and interdicted her from using her property to trade as a business.

Veldhuizen says it is “reckless” for estate agents to advertise such properties without checking with the town planning division about the zoning rights.

“Often estate agents will be told by the seller that the commercial rights are sound and they will check the facts. Estate agents and sellers could find themselves in trouble as a complaint could be laid with the Estate Agency Affairs Board, and a claim may lie against the seller due to fraudulent misrepresentation.”

Rezoning a residential property for business use is a specialised service which requires the assistance of a town planner, and usually an attorney, and follows a process that is neither speedy nor simple. As a result, business owners can find themselves unable to run their businesses while waiting for rezoning approval.

For this reason Veldhuizen advises prospective buyers to request the title deed of the property, and then check the zoning rights with the city’s zoning map, accessed on the City of Cape Town website.

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