A reader who recently bought a new dwelling has asked the YourProperty expert for advice regarding the overhanging branches of a neighbour’s tree, which are putting pressure on her boundary wall.
Among other issues, the reader is concerned that she will be unable to install an electric fence as a result and that these branches may cause the walls to collapse.
The reader says the neighbour appears not to care and that their husbands have had words, but to no effect. She is now contemplating chopping off the offending branches.
Before considering some of the law, the reader may wish to establish whether her neighbours own the property or whether they are merely tenants, says Sean Radue of Radue Attorneys in Port Elizabeth.
“Some tenants may adopt a more casual approach to their use and enjoyment of a property with less regard for the interests of their neighbours.”
If appropriate, the reader may wish to approach the owner to deal with that person directly in trying to resolve the issues, says Radue.
“The lease between the landlord and tenant may also make provision for the pruning and maintenance of the rental property’s garden.”
He says the law of neighbours generally takes an approach whereby the rights of one owner are balanced against those of the other.
“Thus, one is entitled to have the full use and enjoyment of one’s property but this right stops where it becomes a nuisance to the neighbour, especially once reasonable tolerance has been exercised.”
Insofar as overhanging branches are concerned, an ignored request to remove them could be followed by a removal, as long as the branches are offered back to the neighbour who owns the tree, says Radue.
According to him, there are two aspects that should be considered as far as the wall is concerned.
“A servitude, where applicable, may direct that a particular party is responsible for the repair of a wall.”
Where no direct responsibility to repair exists and the collapse of the wall causes damage to the neighbouring property, the offending neighbour will be responsible for the damages, particularly if problems caused by overhanging branches have been pointed out, says Radue.
“Where the wall is not obviously situated on the property of one or the other neighbour, which would make it that neighbour’s responsibility, the law assumes the wall to be situated on the boundary line.”
He says this would thus make it the joint responsibility of the two owners concerned.
“However, the cause of any damage, such as the trees in this instance, could be argued to negate such a joint responsibility. The right to the use and enjoyment of one’s property does not include the right to reduce or negatively affect its strength and structural integrity.”
As in most instances, it would be ideal if the parties concerned could discuss this matter in a calm manner and reach an amicable solution before the wall collapses, says Radue.
“But the option to approach the court for a remedy, perhaps by way of interdict, is available as an alternative solution.”
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