Written for Property Poser
A reader has approached the Property Poser experts regarding multiple issues he has with various neighbours, ranging from overhanging trees to mudflows causing havoc.
He writes that his neighbour’s trees drop long pine needles into his garden, which block the gutters and downpipes, while the trees’ roots have also lifted up and cracked the concrete driveway.
To add to his woes, his property has been on the receiving end of mudflows from a building site across the road.
Although he says that he has complained to the local municipality, to no avail, he does not mention whether he has approached the owner of the site.
Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town, says it is a well-known principle of the law of neighbours that the owner of a property should ensure that the trees on his property do not encroach on his neighbour’s use and enjoyment of his property.
“Should this happen, the affected neighbour can request that the owner of the tree cut down the overhanging branches or remove the problem-causing roots.”
If the owner refuses to do so, Van der Merwe says the neighbour may take steps to remove the branches and roots himself, but he must then return them to the owner.
“The owner of the tree is also responsible for any damages already caused by the tree.”
Van der Merwe says an interesting point to note is that there is a general responsibility to mitigate one’s loss, in our law.
“Our reader acknowledges that he may have addressed the problem a bit late, indicating that some of the damage, at least, may have been prevented.”
This may reduce his claim for damages against his neighbour but a quantification may be required, says Van der Merwe.
With regard to the second problem, Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West says the owner of the building site would be responsible for ensuring that muddy water is not diverted onto a neighbour’s land.
“The basic principle is that the owner of lower lying land is, to some extent, responsible for accepting the natural flow of water from neighbouring property.”
If this “natural” flow of water is exacerbated by building works and changes to the higher lying property, the owner on the receiving end will have remedies, says Hill.
“He should make the offending owner aware of this situation and request that the flow be changed.”
Should damage have occurred already, he may have a claim for recovery of such damages from the site owner, says Hill.
“Failing a response from the owner, the local municipality may be of some use.”
Hill says the reader should perhaps alert the local building inspector, as these provisions regarding the diversion of stormwater also form part of most local municipal legislation and by-laws.
“Once the building inspector is involved, it may mean that the owner is not supplied with an occupation certificate, which is compulsory for every building before taking occupation and this may spur the landowner into action.”
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On behalf of:
Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys