NEIGHBOURS’ DISPUTE WHEN LEARNING DIVIDING WALL NOT ON BOUNDARY
The law will try to exercise its discretion to address the interests of both parties.
When our lawyers, STBB sent us this, we thought it would be very applicable to many of our new home owners! This judgment is an illustration of the exercise of a Court's discretion when faced with a dispute between two owners relating to the boundary between them.
The wall between the erven was, unbeknownst to all, not on the boundary. The Court noted here that demolition is not necessarily the only remedy in the case of encroachment and exercised its discretion to address the interests of each of the owners.
The full judgment can be viewed here. Roseveare v Katmer, Katmer v Roseveare and Another (2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February 2013)
HERE ARE THE FACTS
This matter deals with a battle between neighbours relating to a huge cherry tree growing on the boundary between their two erven. This occurred after Ms Roseveare subdivided her property and sold the portion to Mr Katmer. She erected a wall on the boundary before selling the subdivided portion, and after the sale, Mr Katmer erected a dwelling house on the subdivided portion.
This matter deals with a battle between neighbours relating to a huge cherry tree growing on the boundary between their two erven. This occurred after Ms Roseveare subdivided her property and sold the portion to Mr Katmer. She erected a wall on the boundary before selling the subdivided portion, and after the sale, Mr Katmer erected a dwelling house on the subdivided portion.
The wall had a nasty kink on Mr Katmer’s side, where it was adapted to surround the cherry tree that they thought was on the boundary between the two erven. The agreement of sale between the parties contained a clause acknowledging the wall and the tree, as is evidenced from clause 4 thereof which read:
“4. The Purchaser is aware that the east boundary wall of portion 2/2449 Houghton Estate has a slight deviation to protect a boundary tree and accepts the boundary wall as it stands.”
Subsequently, when Mr Katmer commenced with certain renovations, he obtained the assistance of a land surveyor for the finalisation of his building plans. It was discovered that the wall was not on the boundary and that Ms Roseveare’s property encroached on Mr Katmer’s property by a certain width, the extent of which constituted 0.5 to 2 metres. (The total surface area amounted to some 20 square metres)
Having found this out, Mr Katmer decided to proceed with his plans and pull the wall down. When Ms Roseveare awoke the next day to the sound of the demolition of her wall, she applied to Court for an urgent interdict to stop Mr Katmer from proceeding with his plans. They settled out of Court and decided that the matter would be put to the Court for a decision.
The cherry tree in question is much loved by both Mr Katmer and Ms Roseveare. Mr Katmer even said in evidence that he would willingly agree to an order restraining him from cutting it down, to appease Ms Roseveare’s concerns.
HELD:
- A Court has a discretion to award damages for an encroachment rather than the demolition thereof.
- The facts of the present matter posed a difficult balancing act when considering the rights of both parties. However, modern conditions require the exercise of a wide discretion by a Court when called upon to adjust the relationships between neighbours.
- In order to achieve a suitable legal outcome, it would be prudent to grant an interdict against Katmer (to which he agreed, when giving evidence) restraining him from chopping down the cherry tree. An order to this effect would calm the fears of Mrs Roseveare with regard to the tree. Mr Katmer can then continue to pull down the wall and straighten it, at his own expense, without harming the tree.
The Court noted further that, in order to safeguard the interests of Ms Roseveare in the event of Mr Katmer deciding to sell, Ms Roseveare should register a servitude in her property’s favour to cover the very small remaining encroachment.
