Property executive under fire for ‘capture’ of viewing deck in landmark Muizenberg building

A real estate executive has sparked an unusual boundary dispute in Muizenberg with his plans to enclose a shared viewing deck that adjoins his apartment and overlooks Surfer’s Corner beach, considered the birthplace of surfing in South Africa. 

Steven Frankal, director of property group Faircape, has submitted building plans to enclose the fourth-floor viewing deck of the historic Empire Building, which the company developed 20 years ago via its subsidiary Muizenberg Village Developers.

Frankal bought his apartment in 2007. In 2019, he acquired a portion of the building’s “real right” — including the viewing deck — which he now intends exercising. 

A “real right” is a right to the immovable property of a sectional title scheme; it may be mortgaged or sold, either in part or as a whole. In the case of the Empire, the developer registered a real right over all communal areas, including the courtyards. 

But several residents question how the developers could sell communal areas — such as the viewing deck — while continuing to use them to market the development. They also insist that buyers were not made aware of plans to sell residential communal areas — neither at the outset when the real right was registered, nor later when apartments were sold. 

A fightback has started amid questions about how Frankal ended up with the viewing deck portion of the real right — allegedly sold to him for an undisclosed amount.

The art-deco Empire is one of Cape Town’s landmark coastal buildings. A former cinema, it fell into disrepair before being rescued by Faircape and turned into upmarket seaside apartments, with Frankal’s apartment at the top — and now being rented out.    

In response to queries, a legal representative for Frankal and Vietri confirmed the enclosure plan.

“This portion (viewing deck) of the real right was ceded to the Frankal Investment Trust (FIT), in February 2019, by the developer, Muizenberg Village Developers. Because the real right is directly in front of FIT’s unit, it is the only owner that could realistically make use of this portion of the real right to extend,” the representative said in a statement.

“These real rights have existed since the scheme was developed in 2007. The area is common property until such time as the real right is exercised.

“These rights were further minuted at the inaugural AGM of the Muizenberg Beach body corporate.” 

The Sunday Times has seen a copy of the minutes, which do not specify the nature of the real right, which one source said this week was most likely interpreted as a reference to commercial developments — shops — on the ground floor of the development. 

The Sunday Times this week visited the deck and spoke to several stakeholders. One resident, who did not want to be named, said he and other unit owners had been unaware that the deck could be “sold off” at the time they bought or leased their units.

“It’s my one stretch of blue sky,” said one resident. “We were all told, ‘don’t worry, you can always use the deck’. Everybody will be affected.” 

However, another source said the deck was seldom used and created an unwelcome need for maintenance. He said any minor inconvenience would be a small price to pay for Faircape’s success in turning a derelict building into a drawcard at the heart of the Muizenberg beachfront.

“They [Faircape] have done so much for this area. I think it’s a case of ‘just let him have his deck’.” 

Not so, says Helene Turvey, an Empire apartment owner, who alleges misrepresentation on the part of the developers.

“Realistically, this portion of the real right should never have been ceded to the business partner of the developer for his own gain, on what is clearly marked in the marketing brochures as ‘communal deck’.”

The deck had been a big marketing and selling feature, and was still used by the developer and his subsidiaries — in a picture on their website — to sell units in the Empire.

“No reasonable person would ever assume, after purchasing from Faircape, that this area would be considered for development other than that of communal space. 

“Many of us were sold units in the Empire, both by Faircape and other agents, with the viewing deck as a unique feature... Having seen the original marketing materials, you can see that no stoep was supposed to be there.

“If the area was always for Frankal, why wasn’t it developed at the time the construction was going on? Surely the right could have been sold to Frankal in 2007, once it was registered and construction was still occurring,” Turvey said. 

The City of Cape Town said this week it had received Frankal’s building application, which would involve a public participation process. 

Brett McDougall, from Muizenberg Heritage, said: “This is not a heritage matter and we cannot provide comment.”