Nuisance – Boundary walls and encroachment.

By S Gey van Pittius 010 592 2321
 
As a home owner you have the right to enjoy your property, as long as your activates do not intrude on your neighbours’ rights, this is the reason for fences. Fences allow us to understand where our rights end and our neighbours’ rights begin.
 
Boundary walls and Fences:
Boundary walls are defined as “any wall erected on, above or over the physical boundary between two properties, so that they stand on or occupy space at least partially on both properties.”
 
Fences are defined as” any fence (including, in an area in respect of which a proclamation under section three is in force, a jackal-proof fence), together with any necessary gate or any contrivance forming part or serving the purpose of such gate, erected on or as near as possible to the boundary of any holding and separating such holding from any other holding.”
 
Encroachment:
Encroachment is seen as the most common disputes between neighbours when it comes to boundary walls/fences, encroachment simply means that a part of your property is crossing the boundary onto your neighbour’s property. This includes things such as branches over hanging or roots breaking through, it can also include disputes where a neighbour feels that the boundary wall/fence is a nuisance, this happens when the wall is a threat to the neighbouring land, it diverts natural light or the natural flow of water.
 
Thus it is very important to make sure when ownership is shared of a boundary wall/fence that both neighbours agree, or if the boundary wall/fence is solely on your land that it meets the Municipalities requirements, these can include the following:
  • A solid boundary wall may not be any higher than 1.8 m on street boundaries, and no higher than 2,1m on lateral boundaries.
  • Palisade-type fences may not be higher than 2.1 m on either street or lateral boundaries.
  • Fences may not be higher than 2,1m on street boundaries.
Who is responsible?
With boundary walls and fences the general rule of thumb, is that both property owners have joint ownership of the boundary walls and/or fences. This means that both are responsible for the maintenance and repairs of the boundary wall/fence.
 
If the boundary wall/fence is damaged in anyway, both owners are responsible for the costs to fix such damages. It also means one neighbour may not do anything to the boundary wall/fence unless the other owner agrees; this includes making it higher, lower, breaking it down and replacing etc.
 
However there are exceptions as always, if the boundary wall/fence along with its base, are solely on one property that owner will be responsible for the above mentioned.
 
Possible Remedies: As with all things in life we have to compromise to find a mutual understanding that pleases everyone, more often than not a simple and polite conversation with your neighbour can solve many problems.
 
However, not all neighbours are understanding and can choose to make it a bigger problem, in these cases here are a few examples of what you can do legally:
  • Appoint a mediator to resolve the problem;
  • Approach local authorities or
  • As a last resort approach an attorney.
Conclusion:
Your home is where you need to feel welcomed and safe and a good relationship with a neighbour can make or break a home environment, thus it is always advised to attempt to resolve the dispute as politely as possible however this is not always an option and we understand that, if you do feel like you are being treated unfairly please do not hesitate to contact a mediator or an attorney to help solve this amicably.
Stay safe, stay healthy

DISCLAIMER: This article does not serve to constitute the giving of, nor purport to be the giving of, legal advice, nor does it purport to replace any necessity to obtain the proper legal advice in any matter. Please feel free to contact us 010 592 2321 to assist you should you require professional legal advice and assistance.