Since time immemorial we have seen countless dramas unfold due to neighbourly disputes and, as many estate agents will testify, small problems between neighbouring properties can cause larger issues when it comes to the selling of one of the properties in question.
With the increasing trend towards high-density living, brought about through the sheer necessity to fit as many houses into urban developments as possible, we are seeing more and more instances of larger stands being subdivided and homes being built closer together. However, the problem that arises with this is the increasing conflict that may occur between neighbours due to the shrinking size of properties. According to Marguerite van Niekerk, a property law specialist at Herold Gie Attorneys, as a landowner under the Neighbour Law rules, one is entitled to enjoy, use, convert, alter, destroy or sell your property in any way that you please within the limits of state and local authority regulations, provided you do not interfere with the legal rights of your neighbours to the same enjoyment of their property.
“Knowledge of each others rights and obligations is the first step in establishing a good relationship with your neighbours and enjoying your home to the full. A dispute between neighbours invariably involves, amongst other things, the question on whether there has been an abuse of a right and the facts should be examined to determine whether the neighbour whose conduct is being complained of is reasonable or not.”
Van Niekerk explains that in all conflict situations that arise between neighbours the question that must be asked is whether the complaint is objectively reasonable? “In other words – is it fair to require the complainant to tolerate the intrusion?”
In our modern society, the most common disputes that arise are usually over noise, boundary disputes, including boundary walls and fences and boundary encroachment as well as shared driveways and payment of repairs.
“With boundary disputes the best thing to do is get the official town planning diagrams which are kept by the local authority, or call in a registered land surveyor who can re-determine the boundary. With boundary walls and fences, the generally accepted rule is that it is the joint property of the neighbours who are both equally liable for the walls (or fences) maintenance and repairs and neither can make any changes to it without the consent of the other,” advises van Niekerk.
According to van Niekerk, boundary encroachment is a dispute that is possibly seen the most. “This can cover anything from a trees trunk, branches, roots or leaves to a boundary encroachment by a building structure such as a deck, garage, pool etc. When it comes to the general ruling on trees, it is accepted that no part of a tree may encroach on a neighbour’s property. When this happens one can request that the owner of the tree rectify the situation. If they should refuse, the court may be applied to for an order, or the neighbour can cut back the offending part of the tree themselves.”
“With building structures, courts tend to lean towards what is reasonable and fair and may not always rule that a structure be removed. The court may rule for the owner of the encroached land to claim for damages or for payment of compensation for the use of part of his or her land or direct you to take transfer of that part of your neighbour's property on which the building has encroached.”
“When it comes to shared driveways,” says van Niekerk, “the official plans or title deeds for the properties will show who owns the driveway and who has servitude rights to use it. Even a sole owner of a driveway has no right to restrict the neighbours access to their property and should this happen, the wronged party may seek legal counsel to rectify the situation. When it comes to the payment of repairs, the title deeds for a property should make it clear who is responsible for repairing shared driveways.”
“With Absa’s current house price index indicating that the average suburban house will now cost in the region of R1 million and that buyers will have to fork out over R10 000 a month to afford their middle class house – a persons home has truly become his or her kingdom. Your home is your most valuable asset and it is essentially important to ensure that you get along with your neighbours and return home to a harmonious environment with no conflict and unpleasantness at the end of the day,” concludes van Niekerk.
Source: www.eprop.co.za, September 18, 2007.
Love Thy Neighbour - the Laws Governing Neighbourly Conduct
September 18, 2007