WHAT TO DO WHEN TREES OR BUILDINGS ENCROACH ON YOUR PROPERTY

It is a common sight on the boundaries of properties to see tree branches extending over the wall or roots burrowing under the wall. While it may be seen as a welcome addition to property boundaries, this is not always the case, and encroaching trees can quickly become a nuisance as the branches interfere with the property, dropping material, and the roots can disturb the neighbour’s paving or building.

In cases where the boundary of the property is not clearly separated by a wall, where buildings are built in close proximity to each other, or where it is not clear where the boundary actually lies, buildings too can encroach over the boundary.

An important question for property owners is what they can do to remedy these issues.

In South African law, property owners are entitled to the uninterrupted use and enjoyment of their property. They are also entitled to use the air above and the land below their property. There are important exceptions, such as regulations on the heights of buildings and structures, and mining laws reserving the right to the state to mine land for minerals.

These entitlements, however, end at the property boundary, and various remedies are available when trees or buildings encroach on neighbouring property.

Encroaching branches, leaves and roots

Where a neighbour’s branches and leaves encroach onto your property, the trees and plants themselves remain anchored to the neighbour’s property, and as such, you should notify the neighbour and request them to remove the branches so that they are no longer crossing the boundary.

Generally speaking, it is not advisable to cut the branches without giving the neighbour a chance to remedy the situation themselves. If they do not take action after a reasonable period of time, you may proceed to remove the branches and material only until the boundary line and no further. A court order may be obtained, forcing the neighbour to remove the encroachments, but as with all court processes, this can be a costly and lengthy endeavour.

An important consideration is that the plant material still technically belongs to the neighbour, and as such, an effort to return it should be made. The material should be made available for collection, failing which it may be disposed of.

If the issue is not with the branches and is primarily one of falling plant matter, the court will only step in to assist in severe cases. In Malherbe v Ceres Municipality [1951 (4) SA 510 (A)], an interdict against the municipality to prevent leaves and acorns affecting a homeowner’s drains was denied, as the court established that a degree of tolerance is required between neighbours, especially concerning the normal consequences of ordinary land use. In Vogel v Crewe and another [2004] 1 All SA 587 (T), the court rules that nuisance disputes are to be determined and decided using an objective standard of reasonableness and balancing the competing interests of neighbouring property owners.

Encroaching buildings or permanent structures

Buildings and structures, including their foundations underground, also may not exceed the boundaries of the property. The remedies for these encroachments take a different form.

The owner may demand that the neighbour whose building is encroaching on his or her land remove the structure. In contrast to the remedies for trees and roots, at no point may you remove the offending structure yourself. If the neighbour does not remove it as demanded, it will be necessary to approach a court to resolve the situation, and the courts will weigh facts such as fairness, proportionality, prejudice, and compensation in reaching a decision.

A court requested to grant an order of removal will consider factors of reasonableness and fairness, and will exercise its discretion as to the possible remedies. In neighbour law, the court exercises a discretion on a case-by-case basis, considering the principle of reasonableness between neighbours.

This principle may be seen in Rand Waterraad v Bothma [1997 (3) SA 120 (O)], which examined early case law and found that the court was empowered to exercise its discretion in favour of damages rather than removal of the structure depending on the relevant facts of the matter. The court has a wide discretion to award damages or compensation where the litigant does not request removal or where it would be unreasonable to require it. These damages are adjusted for the value of improvements that have been made to the property as part of the encroachment.

Alternative remedies to the above include, in some instances, the court ordering the delinquent party to take legal transfer of the property, as well as pay compensation to the landowner, although this aspect is rather hotly debated by legal scholars. The compensation awarded includes the value of the land to be transferred and the costs of transfer. It is also an alternative award to compensation alone, as confirmed in Meyer v Keiser [1980 3 SA 504 (D)].

As pointed out above, it is not a foregone conclusion that a court will order the removal of an encroaching structure or building. Hence, it is always advisable to seek the advice of a lawyer to ensure that you are acting within the confines of the law, lest you make yourself guilty of taking the law into your own hands, which could result in your neighbour taking legal action against you.

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Prepared by Marc Deville.