PROPERTY ENCROACHMENTS – WHERE TO DRAW THE LINE

Ever found yourself frustrated with a neighbour of yours erecting some kind of structure which (intentionally or unintentionally) appears to sneak onto your piece of land? It is not an uncommon phenomenon and the problem many property owners (both residential and commercial) appear to have in recent times relates to that of land boundaries and where to ‘draw the line’. What’s interesting though is that in all of these cases the need to draw ‘imaginary lines’ that run along the property are actually not entirely necessary.

How are building lines actually determined?

Every property has demarcated lines that specify where the borders of the property are and just inside these borders one would find the property’s building lines. Where the building line will be situated will be determined by the relevant town planning legislation and is usually easily accessible from the local municipality’s town planning department. At the department you would request a copy of the property’s particular zoning certificate which would show where exactly the building lines on the property run.

What happens if building lines are not adhered to?

So it happens that your neighbour goes ahead and builds a structure within the building line (which you have now determined having seen the zoning certificate) and is quite happy with his work. Unfortunately for him he is in violation of the town planning laws that govern the property and you have the right to report it to the local municipality’s town planning department for investigation. The town planning department is then obliged to conduct an investigation to determine whether or not a violation is indeed the case and if so, compelling your neighbour to either remove or demolish his latest project. You should certainly have in mind that although this is an option available to you, the time frame for remedy is difficult to determine due to fluctuating municipal issues regarding inspecting officers.

Where after a second letter from the Municipality is sent off warning your neighbour to remove or demolish the structure, then the Municipality can approach its Attorneys to obtain a court order to this effect. A municipality may also be able to penalise your neighbour by charging increased rates and taxes, if provision for this is made in the municipality’s tariffs. Again, because our municipal departments are inundated with work you are able to approach your own Attorney to bring the above Application to Court. This can be done whether or not the Municipality is involved or is assisting.

Can my neighbour request a change to the building lines?

Your neighbour is desperate to have the structure built and tries to convince you to allow him to build it, even though it intrudes on your property. In order for him to do this he is able to make a formal application to the Municipality for approval to ‘relax’ the building line and move it outwards toward the border of the property or even all the way to the boundary. The good news is that you’re not completely silenced as the Municipality does take into account whether or not you approve of the relaxation. The bad news, however, is even if you do object to the application the final decision will always lie with the Municipality on whether the application is to be granted or not taking into account each cases merits.

Encroachment on your property

If your neighbour has succeeded in building his structure such that it exceeds the building line as well as the border (which includes building a balcony or roof over your land) this is actually an encroachment and is unlawful unless you have agreed on it over a cup of tea. Here the Municipality is of no assistance as it is beyond their jurisdiction but you are certainly able to instruct an Attorney to approach a Court for relief such as, for example, a demolition order or a Court interdict.

Is a Court ever obliged to grant a demolition order?

Generally speaking, Courts are reluctant to grant demolition orders especially where the structure in question is someone’s home, or part thereof. Other than demolition a Court may order that your neighbour pay you compensation for any loss you may have suffered as a result of his structure being built. However, a Court will only be obliged to order a demolition where an application is brought in the Magistrate’s Court by a Municipality under section 21 of the National Building Regulations and Building Standards Act 103 of 1977 for demolition based on non-compliance with the provisions of this Act.

What if my neighbour is about to start building, but hasn’t yet?

If your neighbour is planning to build or has built in a manner that violates the building lines or encroaches on your property, you can approach the Court for relief to either prevent him from building the structure entirely or, if he has already started, to cease building. An Attorney would be a good option here as this type of relief usually requires swift action to be taken.

For assistance with any building disputes or further information of the above, contact Randles Incorporated on 033 392 8000 or on info@randles.co.za.

BY: SHIAN HEYNES – RANDLES ATTORNEYS

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