Although ownership is the most comprehensive real right one can have over property, this right is not unlimited and is limited by the law and the rights of others. In terms of the limitation imposed by law we look at neighbour law which within itself deals with many different elements which limit the right to ownership in order to prevent the infringement of the rights of others. The different elements, amongst others include:
1) Nuisance:
Nuisance can be determined in terms of a narrow or broad approach. If nuisance comes by way of a narrow approach the infringement on the rights are in the form of noise, smells or gases and the remedies available would either be a prohibitory interdict (given that the requirements have been satisfied) forcing the neighbour to stop the infringing conduct or compensation. Nuisance in the broad approach includes damages caused to your property and the remedies available would either be an interdict (given that the requirements have been satisfied) or a claim for damages.
The court, before granting a remedy, would look at a number of factors in order to ascertain if the nuisance is in fact an infringement or if the plaintiff is acting over sensitive.
2) Encroachments:
If one has a neighbour whose trees are disposing of its leaves on your property one may inform the neighbour of the issue and ask him to get the branches trimmed, if the neighbour subsequently refuses to trim the branches one may trim the branches himself or approach a court for a court order forcing the neighbour to attend to the burdensome matter. In terms of a neighbour’s trees roots which are on your side of the boundary wall, one can get the roots removed without the consent of the neighbour or a court order.
3) Shared walls and fences:
Often neighbour’s agree to share the costs of boundary walls and fences, in which case ownership is also shared.
In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared. Some local authorities state that each side is then owned by the property owner; others say that the wall is owned jointly. If ownership is shared either way, neither owner may do anything to the wall – i.e. they may not raise it, lower it or break it down – without the other neighbour’s permission. If the structure is damaged in any way, both must share the cost of repair.
4) Water flow:
Ones neighbour is prohibited from preventing the natural flow of water – If your property is situated on the top of a hill and your neighbour’s property is further down the hill, he/she cannot under any circumstances prevent the natural flow of water resulting from rain or any other act causing the flow of water. If ones neighbour proceeds in preventing the natural flow of water from your property which in return causes damage to your property, one could claim damages.
In relation to the aforementioned limitations, if a solution cannot be reached by negotiation and the problem cannot be ignored, legal action would always be used as a last resort. Should you require assistance on any matter in this regard you are welcome to contact our offices or your local attorney.