A reader would like to know what he can do to settle a dispute with his neighbour whose fruit trees and their branches encroach on his property by several metres.
An avid gardener, the reader says the leaves, branches and rotten fruit are a cause of constant irritation for him.
He initially took a friendly approach in discussing this matter with his neighbour, but to no avail and they have had regular arguments about the issue.
Due to the downsizing of properties, people are living closer and closer together.
See the reader’s question here.
There is an expectation that a certain level of tolerance is required between neighbours when one is exercising his rights to the use and enjoyment of property.
Noise, as well as the aroma from a neighbour’s cooking, can be factors, but the encroachment of plants is not as temporary in nature.
If unchecked, an encroachment of vegetation can prevent the use and enjoyment of the neighbour’s area.
The reader says he is open to a reasonable compromise, even having offered to trim the branches himself.
His neighbour, however, threatened criminal charges, presumably based on malicious injury to property, should the reader remove any overhanging branches.
The principles applicable in South African law stem from the Roman-Dutch law and are fairly straightforward.
Due to the strained relationship, the neighbour should direct correspondence to his neighbour requesting the removal of the overhanging branches.
He should also advise him that should he fail to remove them within a reasonable period, he (the reader) will remove them.
If removal is difficult or expensive, the reader could consider approaching the courts for recourse forcing the removal of the branches and ensuring that the neighbour is compelled to prevent any future encroachment.
Should the reader wish to retain the trimmed branches, he may only do so with the consent of his neighbour.
Alternatively and failing such consent, the branches may only be retained if the neighbour does not collect them within a reasonable period of time.
Presumably, the branches could have some value, perhaps as firewood.
Interestingly, the courts have expressed that, should a neighbour fail to make use of the remedy to remove the branches, he may not insist on the offending neighbour cleaning up fallen branches and leaves.
As far as the fruit on the overhanging branches is concerned, Roman-Dutch law says such fruit does not belong to the owner of the land being encroached.
Instead, it belongs to the owner of the tree and it is even expected that the suffering landowner should permit the tree owner to collect the fruit on a regular basis.
If the fruit falls from the tree it still does not belong to the owner of the land, preventing a dispute as to whether or not the owner of the tree could collect fallen fruit during the permitted regular collection.
There is, however, authority for a different approach whereby the picking and use of the fruit is allowed, presumably as some form of compensation for the nuisance suffered.
As with many matters of a neighbourly disposition, common sense should take precedence.
Although it may eventually prove to be necessary, costly litigation enforcing something as mundane as overhanging branches does seem like overkill.
Perhaps the expense of such litigation will encourage reason to prevail.
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