The Law of Neighbours: a Storm in a Teacup?

Good fences make good neigbours, or so the adage goes. This is not always the case but very few of us want to kick up a fuss about a plant that is growing over our fence which we have to constantly cut back, or the fact that Mrs Soap’s mulberry tree is dropping fruit all over our garden and is making a mess, and rightly so as these issues, in the greater scheme of things, may seem trivial.

The difficulty, however, arises when the actions of our neighbours, whether direct or indirect, makes us suffer some kind of loss, whether this be a loss of the use and enjoyment of our property or monetary loss. Possibly the most prevalent issue, with the fact that the rainy season is upon us, is that of storm-water drainage.

Storm Water  

The Roman Law principle with regard to storm water management is captured in the ‘actio aquae pluviae arcendae’ loosely translated to “the action of obstructing the course of rain-water”. The principle that comes out of this is that the neighbour in the lower lying property must, by law, accept the natural flow of water from the higher lying neigbouring property from which the water comes.

The Supreme Court of Appeal confirmed this in the case of Pappalardo v Hau 2012 (2) SA 451, where the Court emphasised the fact that the amount of water that must be accepted by the lower lying neighbour can only be the “natural flow”. If the higher lying neighbour has done something that has increased the “natural flow” of water, for example, he has paved a certain area or he has built a new structure, then he has the duty to prevent the extra flow from reaching the lower lying neigbour.

Encroachment

With more and more property being developed, other issues may also arise, encroachment of buildings being one. Here, the principle is quite simple and relates directly to the ownership of your land; if neighbour B builds a structure that either encroaches directly onto neigbour A’s property, or encroaches on the airspace above neigbour A’s property, then neighbour A has a right of recourse against neighbour B. This comes from maxim in Roman Law “male jure nostrouti non debemus”, that essentially states that no neighbour may interfere with the other neigbour’s right to possession of his property.

This principle was touched on in the case of Smith v Basson 1979 (1) SA 559, whereby the court stated that encroachment of buildings by neigbour B onto neighbour A’s property did not give  neighbour A the right to destroy the building, neighbour A, however, did have the right to have the encroachment remedied. In certain cases the encroachment can be remedied by the offending neighbour buying the land upon which he has encroached, alternatively, he may simply remove the part of the building that has gone beyond his own boundary.

Further, if the neighbour A had knowledge that the building was going to be built on his property and he did nothing about this until after the building had been built, then he cannot request neighbour B to take that part of the building down.

Plants

The case of Smith v Basson above deals with encroachment of plants, namely bamboo planted as a division between the two properties. In this case, it was confirmed that if neigbour B plants any form of vegetation on neighbour A’s property, then those plants become a part of neighbour A’s property. Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed.

In instances where branches overhang from the trees of a neighbouring property, neighbour A may request that neighbour B remove those branches and if neighbour B refuses, then neighbour A may have the branches removed and claim the cost of removal from neigbour A. Neigbour A cannot, however, request that neighbour B remove the fruits and leaves that have fallen from those branches.

Further, the roots systems of trees can sometimes cause damage to property. In the case of Bingham v the City Council of Johannesburg 1934 WLD 180, it was found that neighbour A who had his property damaged by the roots of trees planted by neighbour B (the Council) was entitled to request that those trees be removed and he was entitled to claim for the damage done to his property by those trees.

Conclusion

Whilst most of us do not want to tread on any toes when it comes to our neighbours, it is useful to remember that you have a right to use and enjoy your property and no-one is obliged to continuously  pay for damage caused by someone else’s negligent or intentional actions. The best case scenario is that you are able to sort these issues out with your neighbour simply through courtesy and respect for each other, however, if there is no alternative, it is important to know that you have rights and that they can be protected and enforced.

 

 

 

Written by:      Daniel Van Zuydam (Candidate Attorney)

  • Added 03 December 2012

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