This week the Property Poser experts assist a reader whose neighbour’s stormwater runs across his property.
The reader does not indicate if the neighbour did anything to divert the water onto his property or whether it just appears to be the natural flow of the water.
He would like to know what his neighbour’s obligations are and whether the National Building Regulations and Standards Act is still in force.
It is not difficult to see why this issue is becoming more and more problematic with open space becoming increasingly scarce and properties being situated more closely together, says Rian du Toit from DTS Attorneys in Port Elizabeth.
“Some time ago, a 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.”
Du Toit says this means that only the flow that would have occurred before the properties were developed would be permitted to continue.
“The Act to which the reader refers supports this ruling and compels the owner of the low-lying erf to accept the runoff, provided the water does not flow through in an excessive and concentrated manner.”
If the owner of the higher-lying property wanted to oblige the other to accept stormwater, Du Toit says he or she would have to prove that the water would have flowed onto the lower-lying property even if there were no buildings and the ground contours were not interfered with.
This may be a rather heavy burden of proof as the situation is not always clear, resulting in many an argument between neighbours, says Du Toit.
The reader would do well to consult his local municipal regulations, which generally include provisions obliging all owners to discharge their stormwater onto a public street if possible, says Charlotte Vermaak from Chas Everitt in PE.
“Then, only where this is not practically possible, must the owner of the lower-lying property accept the runoff. The practical route would therefore be to address the situation and let the neighbour know that the stormwater is causing a problem.”
Unless the neighbour could prove that the water would have flowed over the reader’s property in any event, he or she would have to look for another solution or provide assistance to the affected party by installing a drain, says Vermaak.
“It may help to ask the local authority to conduct an inspection of the situation.”
Vermaak says the more extreme and costly route would be to apply for an interdict against the neighbour, compelling him or her to stop allowing the water to run across the other property.
“As is often the case, litigation of any sort should be a last resort as it may turn out to be an even more costly option than implementing a solution.”
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