Picture: Marina Constas, director BBM Law
Many people are finding it more affordable to work from home but if you are living in a residential estate this could present a challenge.
Globally many small businesses struggled to survive financially because of the Covid-19 lockdown. In polls conducted by Stats SA 36% of businesses indicated that they were unsure if they had the financial resources to continue operating. To cut down on costs, many small business owners terminated their leases at shopping centres and office buildings in favour of the more affordable option to work from home.
This is creating challenges for community housing schemes like residential estates and the homeowners’ associations that manage them, says specialist attorney Marina Constas, who is a director of BBM Law and a specialist sectional title attorney. “In large estates, the properties may be able to accommodate small businesses, but generally, the estate directors need to be really specific about having the correct rules in place if they decide to allow an estate, which is strictly speaking for residential purposes only, to accommodate certain home enterprises. A formal application should be made to the directors, and the business must comply with the rules of the estate and the municipal by-laws,” she stresses.
Get the facts
Small business owners should arm themselves with the facts, including the municipal regulations and the memorandum of incorporation within their own estate before moving any business enterprise into their home advises Constas. Homeowners’ association directors should also consider refining their rules in order to mitigate risks and the impact on other residents.
In the first place, it is important to note that certain businesses are not permitted to operate in a residential area at all. These include motor sales, heavy mechanical repairs, a car wash, spray painting operation, a shop or retail outlet, spaza shop, tavern or shebeen, restaurant or coffee shop.
Other types of businesses are allowed if the running of the business complies with the applicable regulations. Constas cites as an example, a homeowner in an estate in Fourways, Johannesburg who wanted to close her hair salon and convert her home’s entertainment area into a home salon. In this instance Section 20 of the Home Enterprises for Professional Occupation, City of Johannesburg Land Use Scheme (2018) would allow her to do so as long as she complied with certain conditions. However, a pet grooming salon would be a no-go from the outset. Other businesses that are not permitted to operate from home include a place of amusement, commune, and a hotel.
“Once the business owner has established that their particular trade is not specifically excluded, they would then need to ensure that not more than 25% of the built floor area of the unit will be used for the non-residential purpose; or 50m² of the dwelling. The principal of the business must also be a permanent occupant of the residential home. The number of people who may work at the business is limited. A maximum of two other people – in addition to the members of the household who live there permanently – may work at the home business,” Constas explains.
Plan for parking space
Parking is a consideration, and must be to the Council’s satisfaction, According to Constas it is also stipulated that any home business, profession or occupation that causes an undue increase in traffic will not be permitted. In addition, the enterprise must not negatively impact any infrastructure services and place greater demand on these than normal domestic use would. Any business that interferes with the aesthetic appearance of the neighbourhood or creates noise, smells or dust would not be permitted.”
Rules of the estate
Once the business owner has ensured compliance with the conditions set out by the Council, there are also the rules of the specific estate to be considered. In a community housing scheme like a residential estate, the business should be subject to approval by the Homeowners’ Association. Constas notes that the rules of the estate where the hair salon was planned stipulated that no business activities could take place without the written approval of the homeowners’ association and the approval of the City Planning Department – consequently the resident was not able proceed with her plans for a home salon.
“I urge anyone considering a home business to study the municipal regulations and the memorandum of incorporation of their homeowners’ association,” advises Constas. She urges homeowners’ association directors to ensure that their rules clearly state that no business activities or trade may take place without the written approval of the homeowners’ association, and that the rules are aligned with the municipal by-laws. “In this way, each application can be considered individually, and everyone’s interests are protected. In the event that the rules are breached, the association would be entitled to institute legal proceedings in respect of such a breach, as well as refer such conduct to the relevant authorities for breach of the by-laws,” Constas ends.