A reader is caught in a situation where a portion of her house encroaches on property owned by the local municipality.
She bought the plot some years ago from a developer, who contracted a builder to construct the dwelling.
Soon after taking occupation, however, she received a letter advising her that a portion of the building was built on property belonging to the local municipality.
She was cautioned to correct the problem within a specified period of time.
See the reader’s question here.
The reader queries whether it is her problem, presumably as she was neither the developer nor the builder.
It also turned out that the certificate of occupancy she was given reflected an incorrect address.
She has tried to remedy the situation but nothing has changed and she says her health is being affected.
As it stands, she can’t sell the property, the builder’s company was deregistered years ago and the builder is nowhere to be found.
The municipality is apparently prepared to allow her to purchase the piece of land on which the offending section of building sits, but this means someone will have to carry the cost of rerouting cabling running through the property.
This would appear to be an instance of a fairly severe or significant form of encroachment of a (partial) building onto the land of another.
Case law indicates that in instances of a significant encroachment the courts are inclined to endorse a settlement of the parties.
In these situations it is typically agreed to transfer the impacted land against compensation rather than to order removal of the offending building.
Many courts exercise a discretion allowing for an order of compensation based on principles of justice and fairness.
This even applies in instances where no agreement is reached and the applicant party specifically sought an order for the removal of the structure.
It seems clear that this is a problem that the reader must remedy, one way or another.
The municipality appears to be no more than an innocent party in this matter and the fact that they have been accommodating for so many years is remarkable.
The two practical remedies available to the reader would be to see to the demolition of the offending part of the building or to enter into negotiations about acquiring the affected piece of land.
The fact that the municipality has already indicated that it would entertain this method of settlement should be encouraging to the reader.
A court exercising a discretion could make an order for the demolition or order a higher compensatory amount than the parties might have reached in settlement negotiations.
The influence on the reader’s health dictates that she should, at the very least, explore the option of settlement with the municipality.
This could put her in a position where she can consider the matter from a proper commercial or financial standpoint.
The cost may well be within her reach, particularly if she intends to sell the property in due course.
Any profit realised from selling a property larger than the original size may go some way towards offsetting the expense of remedying the situation.
In any event, the cost of doing that may be lower than the expense of trying to demolish and build the extra room or living area onto another piece of the dwelling.
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