Erasmus NO and Another v Blom and Others (3311/09) [2011] ZAECPEHC 11 (31 March 2011)

Erasmus NO and Another v Blom and Others (3311/09) [2011] ZAECPEHC 11 (31 March 2011)

The plaintiffs failed to discharge the onus of proving that the first defendant breached any agreement or building regulation regarding the height of his roof. The agreement as to roof height was not recorded, and the evidence did not establish that the first defendant misrepresented the intended height or failed to comply with the Candlewoods Constitution and Building Regulations. The plaintiffs approved the building plans, and the defendant's house was constructed in accordance with those plans and applicable regulations. There is no general right to a view absent a servitude or restrictive condition, and the plaintiffs' claim for damages or demolition cannot succeed.

Citation
[2011] ZAECPEHC 11
Parties
Plaintiff: Leon Pierre Erasmus N.O.; Plaintiff: Craig Todd De Lange N.O.; Defendant: Andre Blom; Defendant: Sesha Homes Project Management (Pty) Ltd; Defendant: Kromme Home Owners Association
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
31 March 2011
Case Number
3311/09
Procedural Posture
Civil Trial / Merits Separated From Damages and Alternative Remedy; Trial on Merits
Outcome
Plaintiffs' claim dismissed with costs.
Judges
E Revelas
Legal Topics
Building Regulations, Negative Servitude, Onus of Proof, Restrictive Conditions
Land and Property Civil Procedure Building Regulations Negative Servitude Onus of Proof Restrictive Conditions

Case Brief

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Parties

Leon Pierre Erasmus N.O.

Plaintiff

Craig Todd De Lange N.O.

Plaintiff

Andre Blom

Defendant

Sesha Homes Project Management (Pty) Ltd

Defendant

Kromme Home Owners Association

Defendant

Procedural Posture

Civil Trial / Merits Separated From Damages and Alternative Remedy; Trial on Merits

Legal Issues

  1. 1 Whether the first defendant breached an agreement regarding the height of his roof and thereby impaired the plaintiffs' view of the river.
  2. 2 Whether the first defendant contravened the Candlewoods Constitution and Building Regulations in constructing his house.
  3. 3 Whether the plaintiffs are entitled to damages or demolition of the first defendant's house.

Ratio Decidendi

The plaintiffs failed to discharge the onus of proving that the first defendant breached any agreement or building regulation regarding the height of his roof. The agreement as to roof height was not recorded, and the evidence did not establish that the first defendant misrepresented the intended height or failed to comply with the Candlewoods Constitution and Building Regulations. The plaintiffs approved the building plans, and the defendant's house was constructed in accordance with those plans and applicable regulations. There is no general right to a view absent a servitude or restrictive condition, and the plaintiffs' claim for damages or demolition cannot succeed.

Court Disposition

Plaintiffs' claim dismissed with costs.

Orders

  • The plaintiffs' claim is dismissed with costs.