DETERMINING THE BOUNDARY LINE

The boundary line or markers of each property are recorded in official town planning diagrams. Information relating to the boundary line can be found on the title deed of the property. The Metropolitan Municipality has authority over Municipal Town Planning. If these plans cannot be found, a registered land surveyor should be approached to re-determine the boundary of the property.

NEIGHBOUR LAW 

In South Africa the rules relating to the boundary walls / structures are governed by common law principals of Neighbour Law. The basis of Neighbour law is maintaining a good relationship with one’s neighbour.  Neighbour law has to do with the balancing of interests: on the one hand the right of a neighbour to use their land and on the other the degree to which the other party has to tolerate the possible nuisance that may arise there from.

If a structure is erected solely on the property of one landowner, then that structure will belong solely to that landowner. If it is a common boundary in the form of a fence, wall, shrub or tree and if it cannot be proven to be solely erected on the property of one landowner, it is deemed to be shared by both landowners as co-owners. Each owner owns the respective “half” portion which faces their property.  The landowners are ‘co-owners’ irrespective of who built it.

In theory this means that each land owner may do with their half whatever they wish – provided that their actions do not weaken the lateral support. This has a reasonability aspect to it as each party must behave reasonably in the maintenance and appearance of the structure. Neither one of the two landowners may demolish or alter the common boundary without the consent of the other party.  Both parties have a right to demand a “half” portion the maintenance or repair costs (as long as it is reasonable) from the co-owner neighbour.

Before erecting a boundary wall neighbours should come to an amical, written agreement as to the structure to be built and the sharing of costs of erection as well as future maintenance and repairs.

REGISTERING A SERVITUDE

If one of the homeowners agree that the other party can build a wall or building or other structure on their property, the right of “use” of the property of another can be registered as a servitude on the title deed of the property. This party in whose favour the servitude is registered will hold a “limited real right” which means that that party may use the property as agreed but is not the owner of that portion of the property. The right to use is limited to strict guidelines as agreed by the parties.

ENCROACHMENT

If the boundary wall, building wall or fence (“structure”) is built over the boundary of the property, this structure may be deemed to be “encroaching” on the neighbour’s property. In resolving a dispute such as this, the courts look at the balancing the interests of the landowner who owns the encroaching structure (“encroaching landowner”) with the interests of the owner affected by the encroachment (“affected landowner”).

The court may order that an encroaching structure be demolished, moved (common law remedy) or award a monetary compensatory and order that the structure may remain. More recently courts are tending towards awarding a compensatory monetary award instead of ordering removal of the structure. This depends on the facts of each individual case.[1] The court will consider factors such as practicality, cost and the harm caused by the encroaching structure. If removal will be unproportionately burdensome on the encroaching landowner, then the court will possibly not order the removal thereof.

The affected land owner should seek legal advice as soon as the landowner is aware that the structure is encroaching. The time bar on the affected owner’s claim of one year and one day, from completion of the construction, is no longer applicable. However, if the affected landowner is aware of the encroachment but does not raise his/her dissatisfaction for a prolonged period, the failure could be interpreted as condonation.

If the court decides that the encroaching structure does not have to be removed:

• The structure does not legally attach to the land of the affected landowner.
• The encroaching landowner does not obtain ownership over the land on which the encroaching structure is built but retains the right to use the structure, and indirectly acquires the right to use the land.
• The affected landowner remains the owner of the land and does not become the owner of the encroaching structure.

The encroaching owner may not insist on the transfer of ownership of the land on which the encroaching structure is built. A court may not order the transfer of the land against the affected landowners will.[2] This is a continuously developing area of law, and the deprivation of the use of one’s own land, by an encroaching structure, has constitutional implications which will still have to be tested in a court of law.

[1] Rand Waterraad v Bothma en ‘n Ander 1997 (3) SA 120 (O); Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C).

[2] Fedgroup Participation Bond Managers v Trustee of the Capital Property Trust [2015] ZASCA 103 SCA.