The running of a business from home appears to be a recurring issue in sectional title communities. Section 44(1)(g) and 2(a+b) of the Sectional Titles Act, 95 of 1986—quoted below for convenience—states clearly that a section may not be used for business purposes if it is registered for residential purposes. However, it also states that with the written consent of all owners a business may indeed be run from a section. It further adds that if the refusal is deemed unfairly prejudicial, unjust or inequitable the owner may approach the Court for a ruling.
People raise arguments such as security risks; traffic congestion; abuse of common property and/or collective resources; an owner not personally having granted consent; and being illegal to oppose or question the running of a business within a sectional title scheme. A more appropriate argument would be compatibility of permitted uses allowable. The occupants of a section may, for example, through the rules of the scheme be permitted to conduct one or more home accessory activities with certain provisions specified. With regard to compatibility, it is considered important to consider local authority zoning.
The Wikipedia states that the primary purpose of zoning is to segregate uses of property. Zoning is controlled by local governments and used for town planning to preserve the "character" of an area and to prevent new developments from contrasting. The emphasis of zoning land use, for example of the Buffalo City Municipality, is on the coordinated and harmonious development of the city in such a way that it will effectively contribute to the health, safety, order, beauty and general well-being of the city. The Wikipedia identifies five major zoning categories, namely: residential, mixed residential-commercial, commercial, industrial and special. Each zoning category may have a number of sub-categories. A commercial category may physically sub-divide zones for small-retail, large retail, office parks, etc. An industrial area may be separated warehousing, light assembly and heavy manufacturing; and each area may have designated limit for noise emissions.
With regard to the issue of legality of conducting a business from a residentially zoned dwelling three variations exists:
- No permission is required from the local authority for legally conducting a micro business, such as a one-person show or part-time business. Most South African town planning schemes makes provision for the conducting of a profession or occupation from home; however, it is necessary to differentiate between a free standing property and a sectional title section. Certain criteria exist with regard to a “home enterprise”, of which some would not apply to a sectional title scheme.
- If a business owner wishes to exceed the basic requirements the owner must in addition to obtaining consent apply from all owner of the sectional title scheme concerned also apply to the local authority for consent, permission or its discretion.
- Where an owner wants to convert the existing residence to a business building, the owner is prohibited from demolishing the structure without first obtaining permission from the local authority. This kind of business would not be permitted in a sectional title scheme. However, a “dwelling office”—where the section is converted 100 percent internally, without the external appearance being changed—might with the necessary approval and satisfying certain pre-determined conditions, be permitted.
Extract from the Sectional Titles Act, 95 of 1986
Section 44(1)(g) when the purpose for which a section is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section to be used for any other purpose: Provided that with the written consent of all owners such section may be used for another purpose.
Section 44 (2)(a) Any owner who is of the opinion that any refusal of consent of another owner in terms of the proviso to subsection (1)(g) is unfairly prejudicial, unjust or inequitable to him, may within six weeks after the date of such a refusal make an application in terms of this subsection to the Court.
Section 44 (2)(b) If on any such application it appears to the Court that the refusal in question is unfairly prejudicial, unjust or inequitable to the applicant, and if the Court considers it just and equitable, the Court may with a view to bringing the dispute to an end make such order as it deems fit, including an order that it shall be deemed that the requirement stated in the proviso to subsection (1)(g) is met, an order that the provisions of section 14 of this Act which the Court deems appropriate, shall be applied with reference to the amendment of the registered sectional plan in question, any other supplementary order as the Court deems fit, and an order concerning costs as it deems appropriate.