Airbnb is NOT automatically permitted in Cape Town apartments

Holiday letting in apartment blocks is not permitted in Cape Town in terms of the city’s Municipal Planning By-law (MPBL) together with its policies and frameworks, says Councillor Brett Herron, Mayoral Committee Member: Transport and Urban Development.

Responding to questions from HomeTimes regarding the growing proliferation of holiday letting in apartment buildings on the Atlantic Seaboard, Herron says that the relevant by-law and mechanisms provide “control over holiday accommodation within the city”.

“There are mechanisms for short-term rentals and bed-and-breakfast in dwelling houses. Larger-scale holiday accommodation can take place in guest houses and in hotels,” says Herron. “In terms of the MPBL, a block of flats cannot be used for holiday accommodation or hotel purposes. Any owner wishing to do short-term holiday letting from a block of flats – irrespective of the platform (an electronic platform such as Airbnb or otherwise) facilitating such letting – must ensure that the property is appropriately zoned, and must apply for consent of use for that property from the City’s Development Management Department.”

 Property owners must get city consent

Herron refers to generic application requirements and relevant process to obtain consent of use from the City’s Development Management Department. The city has made available an application document and workflow diagram for the public, indicating the steps and timelines of the process.

“That said, any property owner wishing to apply for consent of use is advised to approach one of the city’s district planning offices or to access the Planning Portal on the City of Cape Town website where the requirements can be obtained,” he says. “The Airbnb and transient accommodation is a complicated matter and it would be to the advantage of any potential applicant to request a pre-application consultation session with a land use planner.

“Owners in a block of flats could decide to convert the block or part of it for holiday accommodation or to accommodate transient guests but would then first have to apply for a consent use for a hotel for that block or part of it from the City’s Development Management Department.”

Herron says “most General Residential (GR) zoned properties in the city have only a dwelling house and, in some cases, a second dwelling”.

“The city’s Development Management Scheme permits B&Bs to be run from such dwellings without any permission subject to compliance with conditions. Furthermore, owners may also apply for a guesthouse to be operated from a dwelling or second dwelling which seems to be the popular approach.

“Furthermore, as per the relevant conditions, it is important to note that B&Bs and guesthouses can only operate from a dwelling house (not from a block of flats). Most bodies corporate also have their own rules and regulations regarding number of inhabitants and letting of property.”

An avenue for whistle-blowing

Referring to property owners who do not comply with the relevant by-law, he says that “any person wishing to lodge a complaint regarding activities that are in contravention of the Municipal Planning By-law are requested to please provide sufficient details to our enforcement staff who will then undertake such investigation and proceed with legal action if needed/warranted”.

“A complaint form must be submitted to the city and in this regard, the Table Bay office (021 400 644) will be able to assist with complaints about alleged contraventions in the City Bowl area.”

No other SA cities have by-laws in place

 HomeTimes has established that no other major South African city (Durban did not respond to questions about holiday letting/short-term letting) has by-laws in place to better manage holiday or short-terms rentals.

A spokesperson for the Department of Land Use Management in Johannesburg said they were “not aware of the extent of the problem”. HomeTimes referred the city to a sectional title expert.

Mthulisi Msimanga, Director: Land Use Management, Human Settlement Directorate in Nelson Mandela Bay (Port Elizabeth) says “there is no policy that governs the type of developments highlighted (holiday letting). I believe this is an aspect that the City will need to explore and determine if there is a need to regulate (it) or not”.

Nelson Mandela Bay city is “currently developing the Spatial Planning and Land Use Management Act 2013 By-law and the Integrated Zoning Scheme,” he says. “This gives the municipality an opportunity to incorporate uses that were not envisaged by the existing zoning schemes.”

Airbnb is bad for residential complexes

 Specialist sectional title attorney, Marina Constas from BBM Attorneys, says that holiday letting in line with the Airbnb trend and short-term holiday rentals in residential complexes “is bad news for sectional title homeowners and for sectional title complexes”.

Marina Constas, director at BBM Attorneys

“Investors who buy properties in residential blocks and then rent these out on a short-term basis, whether through Airbnb or other channels, are jeopardising the reputation, property value and security in sectional title developments, including premier residential complexes in coastal towns and cities where there is a burgeoning demand for secure, affordable, self-catering holiday accommodation,” she says. “This is becoming a growing problem in Cape Town, particularly on the Atlantic Seaboard. While holidaymakers may be delighted to find a place to rent for a week in quiet, sea-facing complexes, the unfortunate permanent residents living there are faced with a constant barrage of unknown people coming and going, and the associated problems and risks.”

Constas, who is a director of BBM Attorneys and author of the best-selling book Demistifying Sectional Title, notes that while short-term rentals can cause big problems in sectional title developments, she stresses that there is a solution for sectional title homeowners and trustees. To protect their complexs’ reputation, maintain the security and preserve property values, sectional title trustees must ensure that the development’s conduct rules prohibit short-term letting.

“Where conduct rules need to be amended to put in a clause prohibiting letting for less than six months, this can be done by way a special resolution,” she explains. “In my view, this is patently reasonable, which is what the Sectional Title Act requires. It stipulates that rules must be reasonable and equally applied to all owners.

“Short-term rentals are not in the spirit of the Sectional Title Act,” Constas maintains, and notes that the act also states in its provisions that owners need to guard the reputation of the building. “Trustees have a fiduciary duty to do so, and they can take control, if they choose to, in order to meet this duty and protect their building,” she states.”

No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)


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