Whenever people live in close proximity to one another, it seems that possibilities for conflict abound. This week the Property Poser panel considers the contentious issue of neighbours overstepping their boundaries.
A reader writes that her neighbour planted a hedge on her own side of a shared boundary wall but that, over time, the hedge grew and covered the whole wall, including the reader’s portion.
She says she did not have a problem with this because the original wall was quite low and the hedge actually provided additional privacy.
Unfortunately, the neighbour recently decided to trim it down to wall height on both sides.
The reader is unhappy that her portion has also been cut down and feels that her neighbour infringed on her property rights, as she clearly had to lean over her wall to reach the hedge.
She would like to know what her rights are in this regard.
This situation is slightly different from the usual boundary issues, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.
“Most neighbours complain about overhanging branches encroaching on their properties and demand that they be cut down.”
Vermaak says, as a landowner, you are entitled to enjoy, use, consume, convert, alter or destroy your property and what the land produces in any way you please within the limits of national and local authority regulations.
“This is provided you do not interfere with the legal rights of others, including your neighbours’ rights to the same enjoyment of their property.”
It is helpful to think of the boundary between properties as the point where your rights end and those of your neighbour begin, says Vermaak.
“If branches of a tree growing on an adjoining property overhang your property, you may ask your neighbour to saw them off and remove them from your land.”
If your request is denied, you may saw the branches off to the extent that they overhang, although you may not keep them unless your neighbour refuses to collect them, says Rian du Toit from DTS Attorneys in PE.
“You may then recover from your neighbour the reasonable expense of removing the branches.”
Alternatively, says Du Toit, you may force your neighbour to remove the offending branches by obtaining an interdict, compelling him or her to do so.
“On the basis of the above principles, it would appear that, in this instance, the neighbour may have had the right to remove branches and foliage comprising the hedge, insofar as these originated on her side of the wall and encroached on the reader’s property.”
However, by doing so, the neighbour appears to have infringed on the reader’s property rights by trespassing in order to do so, says Du Toit.
“Our reader’s remedy may be tricky as, from a civil law perspective, the damages must be proved and quantifying them could be difficult.”
A criminal charge of trespassing may be possible but, says Du Toit, the reader should consider whether pursuing this approach would benefit the already difficult relationship between them.
Article source: http://mype.co.za/new/2012/05/neighbour-oversteps-the-boundary/