Home salon put her in cross-hairs

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Running a business from home sounds a cosy alternative, but it’s not an option for every property, writes Carmel Rickard.

Running a business from home sounds a cosy alternative, and think of all the rent you’d save.

But, as a high court decision handed down this week makes clear, it’s not an option for every property. Sometimes your title deeds or local association can bar such a project even if the zoning is right.

The Vanilla Street Home Owners Association, which runs Bardale Village in Kuils River, Cape Town, had objected to the owner of a property in the village, Basheera Ismail, operating a hair salon from her home, something she’s been doing since June 2008.

Their constitution and village title deeds make it clear that no one may run a business from these properties. Moreover, they had asked Ismail “repeatedly” to stop and she had replied, in writing, that she would do so. But when the hair cutting continued, Vanilla Street went to court.

Ismail won the first round but Vanilla Street appealed and it is the decision on the appeal that has now been finalised.

Her argument was that when she bought the property she hadn’t known she couldn’t run a business from home. She hadn’t caused any “trouble or discomfort” to her neighbours and the village was “in favour” of her home-based salon, which she was forced to run because of economic circumstances. She said that since local zoning regulations would permit such a home-based operation, Vanilla Street’s ban was effectively an amendment to these regulations, something beyond the organisation’s powers.

The judge who heard the initial application bought her argument, finding that because Ismail was “discreet” in the way she operated the business, Vanilla Street owners had failed to prove they had been “injured”.

But the three judges who heard the appeal disagreed. Writing for the court, Judge Lee Bozalek said there was nothing in the land-use planning ordinance preventing an association such as Vanilla Street from “limiting or restricting the usage of the properties of its members”, as was done in Barford Village.

Moreover, there was nothing in the law which prevented property owners from agreeing to a limitation of their rights, as in this case.

Commenting on the original finding against Vanilla Street on the grounds that Ismail had been “discreet”, Judge Bozalek said she had been carrying on the business for a substantial period and had reneged on her undertaking to stop.

Whether Ismail carried out her business “discreetly or otherwise” was irrelevant; Vanilla Street was “well within its right to seek to preserve the residential character” of Bardale Village.

If it overlooked Ismail’s breach of the regulations because she was “discreet”, it would be difficult to object to a future breach by someone using their property for commercial purposes who was less ”discreet”.

But there was still the question of costs. Vanilla Street wanted punitive costs against Ismail. Otherwise any shortfall would have to be made up through special levies on association members.

“I can see no reason why they should be out of pocket or why they should have to fund litigation in a case such as this,” said the judge.

The result will put Ismail in a bit of difficulty of her own making.

She has a Facebook page (with some photographs of the hairstyles she recently created for “Cindy’s wedding”) and she’s been marketing herself via a potentially not very discreet contract system rather like those operated by some gyms: sign up for a year at R299 a month, she says, and “get free treatment, free cuts, free colours and relaxers. Where will you get such a bargain? Please tell all your friends.”

She has also launched a competition with a prize of a year’s contract for the person who “joins up the most new clients”.

Not only must that competition now be cancelled but it seems she’ll have to make some other arrangement with people who have taken out contracts with her salon.

But perhaps it’s not entirely her own fault. Perhaps her parents – or her stars – should also carry some blame: Basheera means “joyful” or “happy news” and, according to several sites, people called “Basheera” will “fight being restricted by rules and conventions”.

Maybe Vanilla Street should in future run a check on the names and likely behavioural characteristics of potential purchasers to see if they’ll fit in?

www.tradingplaces2night.co.za

* Carmel Rickard is a legal affairs specialist.

** The views expressed here are not necessarily those of Independent Newspapers.

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