Branches Hanging Over Wall Make Bad Neighbours
Consider the following hypothetical scenario: Ten years ago, your neighbour planted several fig trees along the wall bordering your properties. Today, the branches overhang your wall, leaves litter your yard and clog your gutter, and the roots seem to have lifted some of your paving.
What, if any, legal recourse is available?
Under South African law, the regulation of disputes between neighbours is undergirded by the reasonableness standard. It is well-established that landowners have the right to the uninterrupted use and enjoyment of their property, subject to any limitations imposed by the common law and legislation. At the same time, every landowner bears a reciprocal duty to refrain from conduct that may unreasonably interfere with their neighbour’s right to use and enjoy their property.
Consequently, a landowner is entitled to plant trees on their property, subject to any statutory restrictions contained under environmental legislation, such as a prohibition on planting alien vegetation. However, a property owner also bears a corresponding duty to ensure that their trees do not cause a nuisance. To that end, a specific use of property will constitute an actionable nuisance if it ‘exceeds the level of what neighbours could reasonably be expected…to tolerate.’
Generally, it is not reasonable to expect your neighbour to prevent falling leaves – regardless of how inconvenient this may be. Given increasing rates of urbanisation and population growth, neighbouring landowners and occupants are expected to tolerate activities that constitute a reasonable and lawful use of property. Planting trees for shade, privacy, fruit, or aesthetic purposes is a presumptively reasonable use of one’s property. Ultimately, any potential damage to gutters or drains caused by falling leaves can be prevented through regular sweeping and is therefore not actionable.
- Overhanging branches
Overhanging branches, however, may constitute a nuisance. To avoid unnecessary conflict, you are advised to calmly approach your neighbour and request that they trim the branches encroaching on your property. If they fail to do so within a reasonable timeframe, you have two possible options: prune the branches yourself and claim the cost of removal from the landowner, or apply to court for a mandatory interdict compelling removal. Depending on the severity of the encroachment, you may also apply for a prohibitory interdict to prevent future encroachments. Predictably, these instances are rare.
To mitigate any damage to your paving or piping caused by encroaching roots, you may legally remove the roots encroaching on your property. If this fails, you could approach a court to order your neighbour to cut down the offending tree(s) and simultaneously request compensation for any damages incurred. In adjudicating the matter, the court will consider whether a reasonable person in your position would be expected to tolerate the interference by balancing your interests against those of your neighbour. Importantly, the courts are usually reluctant to order the removal of trees where less drastic measures, such as the appointment of a specialist arborist, are available.