A reader who lives in a leafy suburb feels she has tolerated her neighbour’s branches encroaching on her property long enough and wants to know what her options are to remedy the situation.
She says it has become the norm in the suburb for everybody to tend to their own trees.
However, her new neighbour has not followed suit and in the time he has been there he has failed to prune any of the trees on the border of his property which, when overgrown, encroach into her yard.
See the reader’s question here.
She wants to resolve the situation because the leaves, twigs and branches falling into her yard now require her attention on a regular basis.
This is a fairly common complaint and it is a form of encroachment.
Many people believe that as vegetation is a natural phenomenon they are not obliged to do anything to curb the growth.
This is especially the case where overhanging branches intrude into the space of their neighbours.
It is understandable that when such growth becomes excessive it can infringe on the reasonable usage of the land by the neighbour and become irritating.
In the majority of cases all that is required is a quiet word with one’s neighbour to identify the issue.
In the interest of staying good neighbours the overhanging branches will quickly be trimmed and the matter will go no further.
It seems likely that the reader has already followed this approach as she mentions she feels she has been tolerant for long enough.
It has long been part of South African law that a neighbour prejudiced by any encroachment is permitted to remove the offending branches.
This can be done if the neighbour, after a reasonable period of time, has failed to heed a request to trim his trees.
Although it sounds extreme, the reader could go so far as to obtain an interdict to prevent the neighbour from permitting the branches to encroach in future.
Interestingly, the law seems to have applied the concept of not having one’s cake and eating it, too.
Where a homeowner enjoys some benefits of an encroachment he cannot insist that the neighbour remove any fallen leaves and twigs.
This was the case in the matter of Malherbe v Ceres Municipality where the neighbour enjoyed the shade of an encroaching tree.
He thus chose not to utilise any remedy to enforce the trimming of the tree but then attempted to force his neighbour (the owner of the tree) to clean up the fallen leaves and acorns.
It is not clear whether any fruits fall from the offending trees in the reader’s case but it is interesting to note that as long as the fruit is attached to the overhanging branches she does not have any right to it.
The fruit that is still attached to the tree remains the property of the owner of that tree, despite it encroaching into the yard of the neighbour.
The reader may wish to consider a well-worded written reminder to her neighbour, encouraging the trimming of the branches.
This could serve as an adequate notice of the situation resulting in the amicable resolution of the matter.
If all else fails, however, the reader could seek legal assistance in approaching the court for an order protecting and enforcing her right to the use and enjoyment of her land.
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