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CROSSING THE LINE – A GUIDE TO ENCROACHMENTS

Oct 27, 2023

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Land surveying forms the foundation of our land registration system in South Africa. All title deeds refer to a diagram or general plan, which is a drawing prepared by a land surveyor indicating the location and extent of the property which is approved and registered with the Surveyor-General. This creates certainty for property owners as there is a complete record indicating the exact portion of property which they own. As boundary lines can only be found on these drawing and are not physical lines in the sand, disputes often arise between neighbours where structures are erected beyond or across a boundary line – which is referred to as an encroachment. This article aims to provide a brief overview of the remedies available to property owners when dealing with an encroachment and some considerations to keep in mind.

What is an encroachment?

An encroachment occurs when your neighbour has built on your property (inside or over your boundary line). It not only refers to an actual structure which is erected on or over your boundary line but also to a structure which protrudes onto your property, such as a balcony or roof. The most common encroachment that arises between neighbours is in respect of shared walls and fences which often deviate from boundary lines because of natural obstructions such as trees or boulders or simply due to poor planning.

Remedies for an encroachment

The default remedy, which comes from our South African common law, is for the affected landowner to apply to court for an order to have the encroaching structure removed or demolished. The rationale for this remedy is based on the right to prevent someone from interfering with the use and enjoyment of your property. The courts however have a discretion to award compensation as opposed to the removal of the encroaching structure in certain instances.

When will a court order compensation instead of removal?

The court will essentially take into account policy considerations and weigh up the interests of both parties in exercising its discretion. Some policy considerations which the courts have considered in previous cases include: the time period between becoming aware of the encroachment and bringing the application for removal; the size of the encroachment, and the reason for the encroachment. However, ultimately the court will simply weigh up the prejudice to be suffered by the affected landowner if the encroachment were to remain in place against the prejudice to be suffered by the encroacher if the encroaching structure were to be removed in reaching its decision.

It is important to mention that an order of compensation in some instances includes the transfer of the affected portion of land to the encroacher. In cases where the court has however ordered the transfer of the affected portion in addition to compensation, the affected landowner has indicated a willingness to accept compensation and surrender their property. It will therefore be interesting to see what happens in a situation where the affected landowner has made it clear that they do not want to surrender their property and the policy considerations are not in their favour, as to order compensation and the transfer of land in these instances would appear to be unconstitutional.

Are there any other options to resolve an encroachment dispute?

The least costly method to resolve an encroachment dispute is to see whether an encroachment servitude can be agreed to with your neighbour. An encroachment servitude is an agreement entered into between the two property owners which authorises the boundary of the one property to encroach on the other, usually against payment of compensation. This agreement is contained in a notarial deed, registered at the Deeds office and endorsed on the title deeds of the respective properties so that it becomes binding on all current and future owners. 

Conclusion

Encroachment disputes can become very costly and drawn-out legal proceedings and ultimately, the best approach is to simply try and avoid these disputes in the first place by exercising caution when erecting any structures on or near a shared boundary. This can be done by requesting land surveyors to inspect your property and confirm boundary lines and consulting with your neighbour throughout the process to ensure there are no issues from the outset.

 

 

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