This week the Property Poser panel considers a boundary wall problem with a few twists.
About seven years ago a reader purchased a unit in a complex. She explains that her property lies adjacent to the boundary wall enclosing the entire development and a small river runs just beyond that.
For about five of the seven years she has lived there, the local municipality cleaned up the riverbanks and secured the area with sandbags whenever there were heavy rains.
When the owners of the properties adjacent to the boundary wall requested that the municipality do more extensive work to protect their properties, all aid suddenly stopped. The reason given was that the property over which the river runs belongs to a local church and is therefore not municipal property after all.
Upon investigation, the reader also discovered that the wall is not actually built as indicated on the approved building plan. In fact, whereas the wall is currently about 12 metres from her house, it should only be three metres away.
In effect, the reader’s back garden has suddenly shrunk by three quarters of its original size. However, when she purchased the property, she was clearly under the impression that the boundary wall was in the correct position.
To make matters worse, the wall is falling apart and the reader has therefore decided to erect a new one in the correct place. She wants to know who would be liable for future damages, should the river encroach further on her property.
The reader claims that the attorney who handled the transfer of her property knew it was not the size it appeared to be. He maintains the sale agreement indicated the size of the erf and that it was her responsibility to check these measurements.
This is a very unfortunate situation, which has been aggravated by the actions of various parties over the years, says Rian du Toit from DTS Attorneys in Port Elizabeth.
“However, unless misrepresentation can be shown on the side of the transferring attorney, or the seller for that matter, his statement is correct. It is the duty of the purchaser to confirm the correct size of the property.”
Du Toit says an agreement of sale will often contain a clause pertaining to the fact that no representations were made by the seller regarding the size of the property or its boundaries.
Furthermore, says Charlotte Vermaak from Chas Everitt in PE, when the new wall is erected, any future damage to it will be for the reader’s account.
According to Vermaak, the only remedy she may have will lie with the owner or occupant of the adjacent land.
“It is his or her responsibility to keep the river free flowing and clear of any overgrowth that could cause it to block up, thereby increasing the potential for damages to the reader’s property.”