Written for Property Poser

Our question this week is from a Property Poser reader who is having problems with an invasive tree on his neighbour’s property.

He erected the boundary wall between the properties and his neighbour raised it at a later stage.

The offending tree was already there and the neighbour removed some of the overhanging branches to allow the reader to move his caravan in and out of his property without causing damage to it.

The roots of the tree are now causing problems in that they are lifting the paving on the reader’s property.

He therefore wants to know whether he can poison the roots, thereby causing the tree to die eventually. He also wants to know whether he can fix the problems caused to his paving and claim compensation from his neighbour.

Charlotte Vermaak from Chas Everitt in Port Elizabeth says the issues relating to the “law of neighbours” have been dealt with in previous articles, setting out that it is of assistance to determine where a person’s rights end and those of his neighbour begin.

“As far as overhanging branches are concerned, our reader is well within his rights to request his neighbour to saw them off and have them removed from his property.”

Should his neighbour refuse, the reader can saw the overhanging branches off himself, according to Vermaak. “These branches however have to be returned to the owner of the tree.”

In this instance, says Vermaak, it appears that the roots are causing more problems than the overhanging branches and the reader would also be entitled to demand the removal of roots that encroach on his property, whether beneath the ground or on the surface.

“Where these roots have already caused damage he may insist that they be removed and claim compensation for the damage they caused.”

Jacques Ehlers from Du Toit Strömbeck Attorneys in PE says a well-established principle in our law is that of one taking reasonable steps to mitigate one’s losses.

“This arguably means that it might have been expected of the reader to take steps to limit the damage at the earliest time of becoming aware of the invasive roots and their impact upon his paving.”

Poisoning the tree, says Ehlers, is a drastic measure. “It would rather be advisable to consult a specialist regarding alternative methods to limit the growth of roots into his garden.”

Ehlers says if removal of the tree is the best option, the reader may consider handing the specialist’s report to his neighbour with the request of remove it at his cost.

“Should the reader poison the tree, he may be held liable for malicious damage to the neighbour’s property. A better option would be to discuss the matter with the neighbour and attempt to resolve it amicably.”

If this does not help, says Ehlers, a more formal route would be to compel the neighbour by means of an interdict to remove the offending roots and to compensate the reader for damages.

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