By Sloan Wilson

January 2019

 

As mentioned in Part 1, owners are entitled to use their land as they please provided that they do not infringe on their neighbour’s corresponding right to enjoy and use their own properties.

“Neighbour law” accordingly places certain restrictions on the way in which an owner uses his or her property. Here are some examples:

Lateral support – an owner’s right to excavate soil is limited by the duty not to withdraw the lateral support which his land affords to the adjoining property.

Encroachment – there are two main types of encroachments, namely encroachment from buildings, and encroachment by overhanging branches and intruding roots of trees. An owner may obviously not build on his neighbour’s land. If he does the neighbour has a choice of three remedies namely (a) he may insist on the removal of the building or structure; or (b) he may eject the builder from his land provided he pays the builder compensation for the enhanced value of the land; or (c) he may demand that the encroaching owner takes transfer of the portion of the land upon which he has built, subject to the aggrieved owner being compensated for the value of the land and the offending owner paying the costs of transfer. The other form of encroachment, namely overhanging branches and intruding roots of trees has been the cause of considerable litigation between neighbours. The general rule applicable to this type of encroachment is that the aggrieved owner may insist that his neighbour cut off the branches or roots which are intruding onto his property. If the offending neighbour fails to do so the aggrieved owner may obtain an interdict (court order) ordering the owner to remove them. Alternatively, the aggrieved owner may cut off the portion of the branches or roots which are intruding into his air space or onto his property and demand that the offending owner remove the branches or roots once they have been cut off.

Surface waters – every owner is obliged to receive the water which flows naturally from higher level adjacent land onto his own land. However, the owner of the higher land may not interfere (subject to certain exceptions) with the natural flow of the water. For example, an owner of higher ground may not divert the natural flow of water onto his neighbour’s lower lying land in such a way that it causes damage to his neighbour’s land.

Party walls and fences – the general rule is that owners are jointly liable for the cost of maintaining party walls, i.e. walls built on the boundary between their two pieces of land. A party wall cannot be demolished without the consent of the other owner.