A boundary wall which was built more than 22 years ago, which was erected on the incorrect boundary line, resulting in a portion of one neighbour’s property being encroached upon, now became the subject of a legal tussle between the neighbours.

The long-standing neighbour dispute concerning two adjoining residential properties landed in the Gauteng High Court, Johannesburg. The neighbour whose property is being encroached upon, the trustees of the Red Cherry Trust, wants the offending wall to be demolished.

The encroaching neighbour, Natalie Maroun (the applicant), has since offered the trust compensation, which it did not accept. Maroun does not want the wall to be demolished and turned to court where she proposes either an encroachment servitude or transfer of the encroached area with compensation paid to the trust.

Both properties are situated within the Palazzo Da Vita Estate in Bedfordview, and the two properties share a common boundary wall. The applicant bought her property in 2002, and the trust became the owner of the adjacent property a year later.

The applicant told the court that she developed and built the house on her property, and that it was subsequently discovered, after the foundations of the house had already been constructed, that the main building was built some 800mm further than was originally planned.

The consequence of this error was that the front façade of the residence was too close to the boundary wall to access the car park next to the house. The error had a further knock-on effect in that the boundary wall needed to be built beyond the area covered by the servitudes originally planned and approved.

The effect of the error was that her property encroached onto the property of the trust by about 3.45 square metres. Maroun said while she knew of this error, she thought it would somehow be resolved.

It was only during a homeowners’ meeting of the estate in 2007 that she became aware that the issue remained unresolved. As a result, she approached the trust and requested that it provide her with a reasonable settlement value for the encroached area.

This request was made because the applicant, rather than correcting the error years later, intended to compensate the first respondent fairly at that time. The trust, contrary to its undertaking to revert to the applicant with a proposed amount, failed to do so. It also did not at that stage raise any objections over the encroachment and only formally did so about 20 years later.

The issue between the applicant and the trust received no attention until November 2023 when the trust issued the applicant with a letter of demand, demanding that the wall be removed. It, however, did not insist on a new boundary wall being erected in the correct location.

The court had to decide whether the wall should stay and that the trust should receive compensation for the encroached portion or whether it should be demolished. The court reasoned that the demolition of the wall would inconvenience the applicant more than the portion of the trust’s space which was taken up.

It was found that compensation, rather than demolition, was the solution.

zelda.venter@inl.co.za

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