The Property Poser experts are often inundated with queries about stormwater run-off from neighbouring properties and this week’s scenario comes from a reader who lives in a sectional title complex.
The reader explains that the area in which he lives was flooded some time ago, while he was abroad.
At the time, his neighbour outside the complex knocked down the wall separating the two properties, which also happened to be the boundary wall of the complex. This was done to drain water from the neighbour’s property.
As a result of the wall being demolished, several properties in the complex – including the reader’s – were flooded, as previously stalled water followed its natural course.
The reader says the neighbour eventually made repairs to the wall, but that it was not rebuilt as before. Some drainage slats were inserted, but no consultation took place.
Trying to be neighbourly, the reader did not interfere. When heavy rains next occurred, the stormwater streamed through the drainage slats and his house plus two others were once again flooded.
The “offending” neighbour is now requesting that additional slats be inserted at the bottom of the boundary wall, presumably because her property is still being flooded due to insufficient drainage. The reader would like to know what his rights are in this regard.
According to Sean Radue of Radue Attorneys in Port Elizabeth, a recent Supreme Court of Appeal decision held that the owner of a lower-lying property is only obliged to receive naturally flowing water from a higher one.
“In other words, only that which would have occurred naturally before the properties were developed.”
Radue says local municipal regulations would probably also include provisions obliging all owners to discharge their stormwater onto a public street wherever possible.
“Only where this is not practically possible must the owner of the lower-lying property accept water from a higher property.”
In such an instance, he or she may be able to recover the cost of any necessary drainage or piping, says Radue.
Susan Chapman from Rawson Properties Platinum PE says the “offending” neighbour would therefore have to prove that the water would have flowed over the reader’s property in any event.
“If not, she would have to look for another solution or consider installing a drain system.”
Chapman says the fact that the reader lives in a complex complicates the issue somewhat.
“His boundary wall forms part of the common property and therefore requires collective decision-making by the body corporate.”
It appears that the neighbour contravened the Sectional Title Act as she may have made alterations to the common property without considering the necessary provisions or following the prescribed procedures, says Chapman.
“I would suggest that the reader seek further legal opinion as to how the law should be applied in this instance.”
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Article source: http://mype.co.za/new/2013/01/navigating-a-storm-over-water/