Written for Property Poser

Our Property Poser panel of experts has received a question from a reader flowing from a previous column about the misrepresentation of a property’s size.

The reader was forced to renovate the roof of her A-frame house a few years ago and decided to include a new room in the roof and a deck on the roof. Having met all the legal requirements, she was disappointed to find that she had a view of the neighbour’s yard as the boundary wall ran under the deck.

Inquiries at the municipality led to the discovery that the wall had been erected in the wrong spot. The result is that the neighbour has use of between one-and-a-half and three metres of the reader’s property alongside the wall.

The reader does not want to insist that the wall be moved to the correct place. She says this will make the neighbour’s yard smaller and she would rather keep good relations with the neighbour. She does, however, wonder how it will affect her property should she decide to sell one day and whose responsibility the problem actually is. 
Liesel Greyvenstein from Greyvensteins Nortier in Port Elizabeth says the reader’s property is not smaller than the representation made to her by the seller. “It seems that even though the reader has had knowledge of the extent of the erf as described in the title deed, her understanding of the physical boundaries (actual size) were incorrect as she had never actually measured the property.

“There is no prejudice to her resulting from the situation. The fact that the boundary wall was erected on her land, resulting in the neighbour’s continued use of her land for many years, does not affect her right of ownership of the land,” says Greyvenstein.

“She is entitled to insist that the wall be moved to the actual boundary of the property.   Obviously, her neighbour is not as lucky as her property may have been represented to her as being bigger than it actually is.”

Greyvenstein says if the neighbour is not happy about the deck overlooking her yard, she cannot legally raise any objections. “The neighbour’s only remedy would be to move the wall to the boundary of the property so that the required distance between the deck and the wall can be obtained.

“Even though the reader is being considerate towards her neighbour by not insisting that the wall be moved to the boundary, I advise them to rather move the wall as soon as possible,” she says.

“They may agree to share the costs, seeing as it is a boundary wall that must, strictly speaking, be erected in equal proportions on both of the properties. This would be a fair solution to a problem that neither of them is responsible for creating.”

Jaco Rademeyer of Jaco Rademeyer Estates in PE says if either the neighbour or the reader wants to sell their property in the future and the wall was not moved, they would be obliged to explain the situation to the potential buyer.

“The buyer will most likely insist that the wall be moved at the expense of the seller prior to the registration of the transfer,” he says. “The seller could find herself in a situation where the other party does not have the funds to share the costs of moving the wall and this could complicate the sale or even cause it to fall through.

“The reader should also keep in mind that in the current situation, her property will seem smaller than it is. This could impact on the marketing of the property as it will be difficult for a potential buyer to visualise the actual size.”

As a matter of interest, Rademeyer also points out that if a person uses someone else’s land in an undisturbed manner for 30 years or longer, while under the impression that the land belongs to him or her, the user may apply to court for an order declaring him or her the owner of the land by acquisitive prescription.

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