Written for YourProperty
Two readers have approached the Property Poser panel this week with similar issues regarding trees encroaching from neighbouring properties.
The first reader writes to say that his neighbour has planted conifers alongside his boundary and that the branches of the trees have become entangled with his security fence. He would like to know whether he could cut off the offending branches.
The second reader has a persistent problem with leaves coming from the trees on a neighbouring property that cause blockages to his pool pump as well as his gutters.
According to Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town, there are some principles of the law of neighbours that apply to both of these situations.
“For example, 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 own property.”
Should this happen, the neighbour who is being affected could ask the owner of the tree to cut down the overhanging and interfering branches, says Van der Merwe.
“If the owner refuses to do so, the neighbour may take steps to remove the branches himself, but he must return the branches to the owner; with the caveat that the removal may result in the owner taking steps against the neighbour.”
Van der Merwe says the owner of the tree could, in some instances, also be responsible for any damages already caused by the tree.
“However, damages might not be claimable where the affected neighbour could take simple steps to negate any damages he may suffer.”
Practically, this is not always a problem, as over the years trees on either side of the boundary do become entangled, says Van der Merwe.
“This usually forms an acceptable privacy barrier and windbreak, in which case neither neighbour would take issue. But, of course, this is not always the case as our current questions indicate.”
It is interesting to note that in some cases, the courts have not only considered the right of a property owner to the enjoyment of his property, but also the important environmental role played by trees, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“In the 2003 reported case of Vogel versus Crewe, the applicant approached the court for an order compelling his neighbour to remove certain offending trees.”
In denying this order, the court pointed out that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in providing shade and oxygen, says Hill.
“The point was made that, like any other living thing, trees also require a certain amount of effort and tolerance, in return for the pleasure they bring to people.”
Hill says it was further pointed out that in light of our increasing awareness of the importance of protecting our environment, we need to become more tolerant towards the inevitable problems caused by the shrinking size of properties and greater proximity of neighbours and their trees.
“The solution of merely pruning the trees, rather than removing them, was offered to the parties. This case once again highlighted the importance of balancing the interests of everyone involved.”
In the current instances, the readers are therefore advised to ask their neighbours to cut back the tree branches in an effort to alleviate the problems, says Hill.
“Furthermore, I would encourage the affected neighbours to also take reasonable steps from time to time as part of a typical household maintenance routine.”
Hill says small actions such as cleaning the gutters to prevent a build-up of leaves or removing the leaves from the surface of the pool water will make a difference in the long run.
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On behalf of:
Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys