Encroaching trees, branches, leaves and roots
Citizens need to be more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and their trees.
Problems arise with overhanging branches and encroaching root systems that block gutters and the sewage system, shed leaves in the swimming pool and surrounding areas and also damage the dividing wall.
If an owner plants trees near the border of his neighbour’s property s/he must ensure that the border is not affected by overhanging branches, fallen leaves or intruding roots. If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner to remove the branches and if the owner fails to remove them within a reasonable time after demand s/he may:
a) remove the branches himself and claim the cost of removal from the landowner; or
b) approach the court for an interdict compelling the owner to remove the branches, if necessary coupled with a prohibitory interdict forbidding similar encroachments in future.
However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. This will only result in high legal costs and an irreversible falling out with your neighbour.
In Vogel v Crewe and Another 2003 (4) SA 509 (T) where the applicant and respondents were neighbours whose properties were situated adjacent to each other the judge said that conduct which infringes upon a neighbour’s health, well-being or comfort in the occupation of his land, with or without the causation of actual damage to a neighbour, could be called a nuisance. The test to be applied in deciding whether the nuisance complained of is actionable is the objective reasonableness test, which seeks to strike a balance between the competing interests of the parties. In the light of an increasing awareness of the importance of protecting the environment, citizens need to be more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and their trees.