Article written by Avyakta Sing, Candidate Attorney, checked by Nadia Steyn, released by Jordan Dias, Senior Associate at Schindlers Attorneys
14 December 2022
This matter dealt with an encroachment and the right of a neighbour to remove the encroachment off his or her property. The Applicant and Respondent are neighbours in the sectional title complex known as Lea Gardens, which is located at 116 Naicker Road in Shallcross, Durban. The Respondent is the owner of the neighbouring unit 6, while the Applicant is the owner of unit 5. The Applicant, who had taken occupation of the property during February 2019 and subsequently purchased it, was informed by the previous owner, that the current fence line between the two properties did not represent the formal border between the two properties. The beacons in relation to the Applicant’s and Respondent’s properties, as well as the encroachment of the Respondent’s driveway and part of the carport into the applicant’s property, are accurately depicted in the report submitted by the land surveyor, Rajan Govender. Since the Applicant purchased the land, neither the parties involved, nor any governmental agency have taken any official action to address or remedy the encroachment issue. Other units within the complex were also affected by the encroachments of driveways and units that belong to the parties of this dispute.
What principles should be taken into account by a Court in determining an application for encroachment?
It is instantly evident that the dispute between the Applicant and Respondent over a bougainvillea tree, which dispute arose on or about July 2020, was the cause that led to the filing of this application. Such cause motivated the Applicant to request the report from the land surveyor in August 2020, even though the Applicant was already aware of the encroachment at the time the report’s contents were requested.
The text messages attached to the Respondent’s papers provide compelling evidence that the timing of the report’s acquisition was not a coincidence. The Applicant’s denial of being the dispute’s trigger, as claimed by the Respondent, is unlikely given the Applicant’s constructive awareness of the incursion in relation to his property as of the date of purchase.
The default position applied over the years in applications such as the above was the common law principles relating to encroachments. This common law remedy applied a strict principle in favour of the owner of a property demanding the removal of any such encroachments. However, the legal principles have since largely developed to the point where the court has now been a given a wide range of discretion in order to decide an application of encroachment.
In exercising their discretion, a court will need to consider and apply a policy-driven approach. This is necessary because a court must make a determination on whether the removal is warranted and necessary. In applying the policy-driven approach, a court should further consider whether other forms of relief would be more appropriate such as compensation or transfer of the encroached upon land.
The court held that in the present application, neither party made submissions regarding policy considerations or alternative remedies to resolve the encroachment dispute. The court was unable to make a determination on the matter without hearing the parties and other interested parties on these aspects. Without doing so, the court could not apply a policy-driven approach and thus the denying the parties an opportunity of filing further representations and submissions would not be in the interests of justice.
Accordingly, the application was dismissed sine die with costs reserved. The parties were further ordered to file reports by suitably qualified experts to determine suitable alternate remedies to the main relief sought by the application including, but not limited to, a compensatory order. The parties were further required to serve a copy of the court order on the Body Corporate of Lea Gardens and the Ethekwini Municipality for representations and submissions to be made.
The court’s discretion to grant a removal of encroachment.