Written for Property Poser
A reader has asked the Property Poser experts for clarity regarding the rights and duties of neighbours when it comes to a boundary wall.
In this instance, the vibracrete wall is in a poor state of repair, with sections falling over. The reader says he has already spent thousands of rands on repairs, while his neighbour appears completely unconcerned about the state of the wall.
He questions whether there is some legislation that would be helpful in regulating the relationship between neighbours when it comes to a common wall.
While there is legislation that sets out provisions for the fencing of agricultural land, there are no laws specifically pertaining to this situation, says Sean Radue of Radue Attorneys in Port Elizabeth.
“But that doesn’t mean that our reader is left without a remedy.”
Quite clearly, the easiest manner in which neighbours can regulate the upkeep of a common wall is by agreement, says Radue.
“This method would spare arguments and permit years of living next door to each other without the burden of disputes about whose responsibility it is to pay for repairs.”
In the absence of an agreement about splitting the responsibility for a shared wall, Radue says the reader should establish on whose erf it was built.
“If the wall is clearly built on one erf or the other, it would typically belong to the owner on whose erf the wall was built.”
Radue says in cases where it is not clear which neighbour owns the wall, because it is on the median line between the two erven, it would be jointly owned by the two neighbours.
If so, says Schalk van der Merwe from Rawson Properties Helderberg in Cape Town, each neighbour would be jointly responsible for his or her portion of the maintenance and upkeep.
“Where one neighbour assumes the responsibility for carrying out the repairs, and as long as these are necessary and reasonable, he or she could claim half the expenses from the neighbour.”
Responsibility for the upkeep of a wall could also be included in the title deed of the relevant property, says Van der Merwe.
“So the reader should thus examine his title deed to see if this is why his neighbour is so adamant about his or her lack of responsibility.”
Van der Merwe says the title deed may also reveal the historical existence of a servitude, where the terms could oblige one neighbour to maintain the wall.
“Although he may have a legal remedy available to him, our reader should bear in mind that it would possibly require some enforcing and this will, no doubt, aggravate the matter further.”
Van der Merwe says the old adage about good fences making good neighbours should be remembered.
“But perhaps, especially in the current instance, the corollary is equally important, with good neighbours making good fences.”
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