Buchanan v Hope NO and Others (654/2010) [2013] ZAECGHC 93 (28 October 2011)

Buchanan v Hope NO and Others (654/2010) [2013] ZAECGHC 93 (28 October 2011)

The court found that the servitude imposed a 4 meter height restriction measured from the finished ground level along the building line, not from the natural ground level at the time the condition was imposed. The evidence of the plaintiff and her expert land surveyor established that the defendants' building exceeded the 4 meter restriction, with measurements showing heights of 5.49 meters and 6.01 meters at relevant points. The servitude was enforceable only from the date of registration, and the plaintiff was entitled to enforce its terms. The restrictive interpretation of servitudes, consideration of surrounding circumstances, and subsequent conduct supported the plaintiff's case. The...

Citation
[2013] ZAECGHC 93
Parties
Plaintiff: Marsha Anne Buchanan; Defendant: Eugene Llewelyn Hope N.O.; Defendant: Claude Stanley Barnes N.O.; Defendant: Eugene Hope Family Trust
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 October 2011
Case Number
654/2010
Procedural Posture
Civil Trial / Final Judgment
Outcome
Judgment for the plaintiff. Declaratory order granted that the defendants contravened the servitude by exceeding the 4 meter height restriction.
Judges
P.W. Tshiki
Legal Topics
Servitude Enforcement, Building Height Restriction, Interpretation of Servitude, Praedial Servitude, Actio Confessoria
Land and Property Servitude Enforcement Building Height Restriction Interpretation of Servitude Praedial Servitude Actio Confessoria

Case Brief

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Parties

Marsha Anne Buchanan

Plaintiff

Eugene Llewelyn Hope N.O.

Defendant

Claude Stanley Barnes N.O.

Defendant

Eugene Hope Family Trust

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the defendants contravened the terms of the registered servitude by erecting a building exceeding the 4 meter height restriction.
  2. 2 From which point the building height restriction of 4 meters should be measured to determine compliance with the servitude.

Ratio Decidendi

The court found that the servitude imposed a 4 meter height restriction measured from the finished ground level along the building line, not from the natural ground level at the time the condition was imposed. The evidence of the plaintiff and her expert land surveyor established that the defendants' building exceeded the 4 meter restriction, with measurements showing heights of 5.49 meters and 6.01 meters at relevant points. The servitude was enforceable only from the date of registration, and the plaintiff was entitled to enforce its terms. The restrictive interpretation of servitudes, consideration of surrounding circumstances, and subsequent conduct supported the plaintiff's case. The...

Court Disposition

Judgment for the plaintiff. Declaratory order granted that the defendants contravened the servitude by exceeding the 4 meter height restriction.

Orders

  • Defendants are ordered to comply with the servitude registered in Notarial Deed of Servitude K326/2009.
  • Defendants are ordered to pay costs of suit, jointly and severally, the one paying the other to be absolved.