Where your property rights end
Source: Reader’s Digest’s You and Your Rights
As a landowner, you are entitled to enjoy, use, consume, convert, alter, destroy or sell your property and what the land produces in any way you please within the limits of state and local authority regulations, provided you do not interfere with the legal rights of others, including your neighbours’ rights to the same enjoyment of their property.
The boundaries between your properties mark where your rights end and your neighbours’ begin. Knowledge of each others’ rights and obligations is the first step in establishing a good relationship with your neighbours and enjoying your rights to the full.
Determining the boundary
Boundaries between properties are recorded in official town planning diagrams kept by the local authority in control of the area. In the event of a dispute over the dividing line between two properties, the first step is to check the official property plans (diagrams). Refer to the title deeds of your property and your neighbour’s to ascertain the plan numbers and with which deeds the plans are filed.
If you and your neighbour are unable to come to an agreement, even with the aid of the diagrams, or if you cannot find the property boundary pegs, you should ask a registered land surveyor to re-determine the boundary.
In the absence of a servitude, an owner may build only on his or her own ground.
A builder who departs from the plans when building on your property might be guilty of encroachment – the building of part of your house on the property of a neighbour. The neighbour could demand demolition of the encroaching portion or the payment of compensation for the use of part of his or her land. A court might rule that demolition would be unreasonable (for example, because the cost of removing the structure exceeds the benefit to your neighbour of removing it) and direct you to take transfer of that part of your neighbour’s property on which the building has encroached.
There is a Roman-Dutch rule which accepted the only two instances where a landowner cannot insist upon the removal of an encroachment, namely:
- If they knowingly allowed the encroachment; and
- If they have not protested the encroachment within a year and day.
However, in Rand Waterraad v Bothma, it was proven that the year and a day rule had its origin in local statutes and therefore was not generally accepted in Roman Dutch law and therefore it was decided that it could never have been received in South African law. The court in that case found that the rule has never become part of South African law.
Therefore, only when a landowner has knowingly allowed the encroachment to take place, can he not insist on removal. However, a landowner in such circumstances may still succeed in action for damages.
The court will then take into account the value of the land encroached upon and the legal costs of transferring that portion of the land should the court order your neighbour to take transfer. You may even be awarded an extra amount for invasion of privacy and for the inconvenience and annoyance of having to surrender a section of property unwillingly.
A further legal remedy available to a person whose land has been encroached upon is to eject the encroaching neighbour and to retain the structure erected on the land against payment of compensation. This remedy may, however, be invoked only if the encroaching structure is independent of any structure on the land of the neighbour who built it, or can easily be separated from any such structure.
Boundary (party) walls or fences
In the absence of proof that a boundary wall, fence or hedge is entirely on one of two adjoining properties, it is presumed to be half on one property and half on the other. Some legal authorities state that each part is separately owned by the owner of the property on which it stands, but that there are reciprocal servitudes of support. Other authorities state that the wall is owned jointly by the owners of the adjoining properties. The law relating to such encroaching boundary walls reflects the influence of both theories. An owner who transfers his or her property, automatically transfers the joint ownership. Neither owner may, without the consent of the other remove, raise or lower the boundary wall or tamper with it in any way except in an emergency, although in terms of common law a neighbour is allowed to break down a wooden fence and replace it at own cost with a more expensive partition.
Either owner may re-erect a boundary wall destroyed by an act of God, such as fire or flood; the other owner would have to contribute half the cost – if he or she will derive any benefit from it. Each owner is obliged to contribute to the maintenance and repair of the wall, although an owner can refuse to contribute to the cost of an unreasonably expensive new wall. Moreover, an owner is under no obligation to replace with a similar structure a boundary wall that was unreasonably expensive when it was originally erected.
It is best to come to an agreement with your neighbour on the amount to be spent on the wall. Although both of you would be entitled to reasonable use of the boundary wall, fence or hedge, this right does not include reducing its strength or making it unstable. It does, however, include improving and altering the appearance of the side that fronts your property. Subject to local-authority regulations, you may use your side of the boundary wall as support for a beam or for water pipes. If it is strong enough, you may even build on it.
The Fencing Act, 1963
This regulates the duties of landowners with regard to boundary fences in agricultural areas. The Act divides the country into proclaimed areas in which contributions to the cost of boundary fences are either obligatory or non-obligatory. If you are not sure in which type of area you live, ask your local authority.
If you farm in an obligatory area and wish to erect a boundary fence, you have a right to demand a contribution towards the costs from landowners whose properties border the land you wish to fence in. You must send your neighbours written notice of your intention to erect a fence, stating the type and purpose of the fence, the estimated cost of erecting it and the contribution required, based on the value or benefit of the fence to them. If none of them object within one month, you may erect the fence and claim a contribution from all to whom you gave the notice. (When a neighbouring owner cannot be traced or is absent from South Africa, you can hand the notice to his or her authorised representative; alternatively, you can publish it in the government gazette and, three times, in a local newspaper. Your neighbour will then have three months in which to object.
Should your neighbour object, by expressing the wish, perhaps, to erect a different type of fence, the dispute, in the absence of agreement between neighbouring owners, will then have to be settled by a board of three people specially constituted for that purpose. Each disputing party may appoint one member to the board, and the two members so appointed nominate a third person to decide the dispute. If one of the neighbours fails to appoint a member or if the two members appointed by them fail to appoint a third member, the chief magistrate of the district in which the land in question is situated may appoint a member. The third member acts as chairperson of the board and the decision of the majority constitutes the decision of the board, which may be enforced as if it were a judgment of the magistrate’s court of the area. Alternatively, if both neighbours agree, a board consisting of only one member may decide the dispute between them.
If a landowner in an obligatory area wishes to jackal-proof an existing fence but the neighbour does not agree to do so, the landowner who wants the jackal-proof fence will have to carry the full cost, unless the Minister of Agriculture has declared the area to be obligatory in respect of the construction of jackal-proof fences.
In non-obligatory areas, a contribution can only be asked from a neighbour who is going to use the fence or is going to derive some other benefit from it.
Say, for instance, you want to erect a fence to prevent your sheep from straying onto a neighbouring farm that is devoted entirely to the production of honey, your neighbour will be perfectly entitled to refuse to contribute since he or she will derive no benefit from it. If, on the other hand, there is an obligation to contribute to the cost of the fence and the amount is in dispute, a board may be appointed to decide the matter in the same way as it would a dispute between owners of adjoining land in obligatory areas.
If the cost of erecting or contributing towards a boundary fence is greater than R40, an advance can usually be obtained from the Land and Agricultural Bank of South Africa.
Where adjoining owners share a single driveway to their garages, the plans will show who owns the driveway and who, by right of servitude, may use it.
It is possible that the driveway may be owned either in undivided shares or that each owner owns a specified half and is entitled to the use of the other half.
Even the sole owner of the driveway has no right to obstruct your access to a garage on your property. If an obstruction to your driveway is in a public place, ask the police to take action; if the obstruction is in the driveway itself on private land, do not, under any circumstances, take the law into your own hands by removing it. If the owner refuses to remove it, ask your attorney to write him or her a letter. If the matter still cannot be resolved, you will have to approach the court for an order to compel the owner – or to allow you – to remove the obstacle.
Paying for repairs
Title deeds might make it clear who is responsible for repairing shared driveways, walls or fences. A servitude might make a single owner entirely liable for the costs of upkeep. If your neighbour refuses to make essential repairs, anyone who is entitled to enforce the servitude may obtain an estimate of the cost of repairs. It is unlikely that a contractor will undertake the work if it is known that the person responsible for payment is unwilling to pay. The servitude holders may therefore have to pay the contractor themselves and present the owner with the bill. The owner of a wall or driveway who is not bound by servitude is normally under no obligation to carry out repairs. However, in the case of deterioration that is likely to prove dangerous to the public, a local authority might order the owner of the property in question to carry out the necessary repairs. In any event, the owner will be liable for damage to your property caused by known defects (or defects that should have been obvious) – for example, if a wall collapses and damages your property.
If the title deeds do not specify that repairs are the responsibility of one owner, it is best for neighbours to agree to share costs. This should be done by an exchange of letters setting out what work is to be undertaken and how the costs are to be shared; alternatively, an attorney could draw up an agreement to be signed by the parties involved.
Overhanging branches and intruding roots
If branches of a tree growing on an adjoining property overhang your property, you may ask your neighbour to saw them off and remove them from your property. If your request is refused, you may saw the branches off yourself to the extent that they overhang, although you may not keep them unless your neighbour refuses to collect them. You may then recover from your neighbour the reasonable expense of removing the branches. Alternatively, you may force your neighbour to remove the offending branches by obtaining an interdict, compelling him or her to do so.
The law with regard to fruit on overhanging branches is not clear. Some legal writers say that you are entitled to pick fruit from the overhanging branches and keep it, while others state that you may take fruit only if it has fallen off the tree by itself. The matter awaits a decision by the Supreme Court.
Usually you can’t complain if leaves from a neighbour’s tree fall onto your property. The planting of trees is held to be a natural and ordinary use of land, however close to a boundary they may be. Even if damage is caused by leaves from your neighbour’s trees blocking your gutters, you cannot claim damages, since it has been held in court that damage of this kind can be prevented by routine cleaning of the gutters, a normal and inexpensive act of maintenance. If leaves, branches, flowers or fruit fall from your neighbour’s tree onto your property, you cannot force your neighbour to remove them. You may demand the removal of roots that encroach on your property, whether beneath the ground or on the surface, or you may remove them yourself. If the roots have damaged your property, you may insist that they be removed and you may claim compensation for the damage they caused.
Unless restricted by a servitude, your neighbour may erect buildings or grow trees on his or her property that obstruct your view or block out the sunlight that you would otherwise receive.
There is, however, an important limitation upon the right of a neighbour to build structures or grow trees that block out your light or create a mess on your property: if your neighbour does so, not in the enjoyment of his or her own property, but rather with the improper motive of causing a nuisance to you, you may be entitled to claim compensation or even to obtain an interdict compelling him or her to remove the offending structures or trees.