COMMON LAW RESTRICTIONS ON IMMOVABLE PROPERTY AND THE EFFECT OF THE LAW OF NEIGHBOURS

Although an owner has complete and absolute control over his property, he must exercise this control with due consideration to the interests of other persons.

The law of neighbours places the following obligations on a property owner:

• The obligation to refrain from causing a nuisance.

A nuisance normally consists of an excessive or abnormal exercise of a person’s right of ownership. However, even if the owner uses his property in an ordinary manner, his actions may still constitute a nuisance if his sole aim is to cause an inconvenience to a neighbour.

• The obligation to support an adjoining property.

A property owner is normally entitled to require his adjoining property owners to provide the necessary support to maintain his land in a stable condition.

• The obligation not to interfere with the natural flow of water.

A property owner is not entitled to artificially interfere with the natural flow of water by, for instance, channelling rainwater in a pipe onto the property of his neighbour, if this would prejudice his neighbour. On the other hand, a property owner is obliged to accept water if it flows naturally on to his property. However, he is not obliged to accept all types of water, for example, he can refuse to accept sewerage water.

• The obligation not to encroach on another person’s property.

A property owner is obliged to only build within the limits of his property. Buildings may not encroach on the property of a neighbour, and if the parties cannot agree on a solution to the encroachment, a Court may order the removal of the structure.  However, the Court may also order payment of damages in place of removal.  It has also been held that the neighbour must take transfer of the land on which he encroached and pay appropriate compensation.

• The obligation to avoid a dangerous situation arising on property.

A property owner is obliged to take reasonable precautions to avoid the possibility that other people may be injured or suffer damages as a result of a dangerous situation on his property.  A property owner has a duty to ensure that the property does not present undue hazards to persons who may enter upon the property, irrespective of whether the users are trespassers, invitees or other persons who have a right to enter such as tenants.

The freedom of the owner to use his property in a certain manner is limited by the common law rights of his neighbours and people that may enter his property. Conflict may arise when one of the neighbours abuses his rights and exceeds his right of ownership to the detriment of the other property owners or the public. The courts will examine the facts of each case and consider what is reasonable and fair given the circumstances.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Source:
South African Property Practice and the Law HJ Delport Juta service 21, 2017