“The importance of boundaries can be summed up in the words of Robert Frost: ‘Good fences make good neighbours’ – with the opposite being just as true.”

This is according to Cor van Deventer, director at law firm VDM Incorporated, who shared some advice on how to avoid litigation in neighbour disputes.

“As urban living intensifies and properties shrink, neighbours must expect certain inconveniences. Still, South African law recognises that no property owner should be deprived of the reasonable enjoyment of their land because of another’s trees.”

He explained that neighbour law balances two competing principles: every owner’s right to enjoy their property without interference, and their neighbour’s equal right to health, comfort, and wellbeing on their own land. 

Accordingly, owners have to ensure that overhanging branches, encroaching roots, or falling leaves don’t create an unreasonable nuisance to the adjoining property.

Van Deventer said legal disputes between neighbours over boundary walls and messy trees were commonplace in South Africa. But, he advised, before seeking legal or municipal help, homeowners need to first check their title deeds. These contain the boundary restrictions which vary from 1.5m to 5m, depending on the suburb. 

“If you planted the offending tree – or bought the property with the tree – in the ‘no-go’ area, it’s your problem, not the municipality’s. People often don’t realise when they plant a tree that it’s going to be a problem five years later.”

The duty on both parties to maintain the boundary must also be considered. Even if it’s not falling in your direction, it’s still a shared responsibility. When it does and if it injures or kills someone you will be liable, he warned.

Citing the unforeseen tornado that wiped out parts of Tongaat in KwaZulu-Natal in June last year, Van Deventer said people have to prepare for the unexpected. “Even if you begrudge spending thousands on replacing or repairing the boundary, you don’t want to end up in court following a tragedy that could have and should have been prevented”.

Also specified in the title deeds are municipal servitudes and wayleaves. Unlike servitudes, which are registered real rights, Van Deventer explained wayleaves as contractual rights most often with communications and utilities service providers.

 “These are created to prevent encroachment issues, zoning violations, safety hazards, and legal disputes,” he said.

Van Deventer explained that with the courts becoming increasingly environmentally conscious, they can be expected to apply an objective test of reasonableness to determine whether the situation constitutes a legal nuisance or not. 

“They will weigh up the pros and cons of preserving the tree versus cutting it down before ruling. If the damage to the wall is found to be minor and easily fixed, the court won’t support drastic measures like cutting the tree down”. 

Van Deventer also explained that the courts have criticised the parties for escalating a relatively minor dispute into a costly legal battle and slapped the offending party with a costs order for wasting the court’s time.

His recommendation is to first try and sort things out in a neighbourly manner, before turning to court.

 “A cooperative approach will usually reduce the risk of disputes – and expenses – escalating. You also can’t just go chopping off next door’s branches or digging out their trees,” he advised.

zelda.venter@inl.co.za

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