Building on your property without asking for your neighbour’s permission, especially if it encroaches on their land, can result in more than an unhappy neighbour.
If a land owner (the land owner) constructs a structure on his property which encroaches upon the property of his neighbour (the neighbour), and the construction has taken place without the neighbour’s consent, the neighbour has various legal remedies available to him:
The neighbour can apply to Court for the demolition of the encroaching structure.
The neighbour can apply to Court for the ejectment of the land owner, in the event that the land owner, through his encroachment of the neighbour’s property, takes occupation of a portion of the neighbours property.
The neighbour can seek an order from the Court directing the neighbour to take transfer of the encroached area against payment of compensation by the land owner to the neighbour for the value of the land that has been encroached upon.
An analysis of South African Case Law reveals that our Courts have generally employed a wide discretion when being called upon to adjudicate matters relating to encroachments. In exercising its discretion, the Courts have regard to considerations of justice and equity.
The types of factors that the Court will take into account in considering whether to grant a demolition order or not include determining whether the demolition order will give rise to an unjust result, or the proportionality of prejudice caused to the parties if it were to grant a demolition order.
In the case of Trustees, Brian Lackey Trust vs Annandale 2004(3) SA 281(C), an encroachment had been perpetrated by the land owners which covered approximately 80 percent of the surface area of the neighbour’s property with the consequence that the neighbour’s property was rendered useless. When the encroachment was discovered, the land owners offered to purchase the affected plot from the neighbour but the parties could not agree on a price and the neighbour demanded that the encroachment be demolished.
The Court weighed up the option of ordering a complete demolition of the offending structure against the option of payment of compensation to the neighbour having regard to the principles of disproportionality and prejudice. The Court noted that it had a wide discretion to award damages instead of granting a demolition order and that this discretion was based on considerations of fairness, subject to the qualification that the exercise of the discretion could not be unfettered. The Court determined that if it were to order a complete demolition of the encroachment, this would produce a disproportionally unfair result to the land owners. Consequently, the Court’s held that it would be more appropriate to award damages to the neighbour including damages for compensation for inconvenience caused to the neighbour rather than granting a demolition order. The Court held that in such a case the awarding of damages to the neighbour would provide the neighbour with sufficient compensation for his loss and accordingly, the Court refused to make a demolition order.
In the unreported case of Smith vs Visser, the neighbour sought an ejectment order against the land owner of the adjoining land who had constructed the encroaching building. The Court, on the grounds of equity and convenience, instead of granting an ejectment order, ordered the neighbour to transfer to the land owner that portion of the property which had been encroached upon and ordered the landowner to pay the neighbour compensation for such transfer.
In the recent case of Bet–el Faith Mission vs Motthamme [2020] ZA FSHC, the neighbour applied for a demolition order of the land owner’s garage which encroached on his property. In this case, the garage had been constructed without the necessary permission of the relevant authority and accordingly constituted an illegal structure. The Court considered that if it did not grant a demolition order of the garage, it would in effect allow the land owner to perpetuate an illegality. In the circumstances, an order for partial demolition of the land owner’s garage was ordered.
It will be noted from an analysis of Case Law regarding encroachments that over the years, the Courts have moved away from a rigid interpretation of property rights in favour of the neighbour and have adopted a practical approach in determining these types of disputes having regard to broader considerations of fairness, social utility, economic waste and neighbourliness.
