Residential Boundary Walls Disputes - Is Conflict With Your Neighbour Worth The While?
Burgeoning property ownership has led to an increase in neighbour disputes about common boundary walls in residential areas of South Africa - often because neighbours have, by erecting a wall that is offensive or potentially illegal, "crossed a line" where the 2 neighbours interests meet.
Disputes are often related to the ownership of the wall and to the location or position of the boundary between the two properties.
Conflict Between Neighbours Often Originate:
- when the wall (or work done on it) causes a nuisance or a threat to the neighbouring land.
- when the wall diverts the natural flow of water, or
- obstructs the neighbour's view or access to light.
- about the true location of the boundary wall - when a wall built in a wrong position "captured" land through acquisitive prescription after 30 years.
- when lateral support of the wall becomes necessary.
- about the cost of repairing or replacing the wall.
- from encroachment - when security measures such as electrical fences or metal spikes on top of one side of the wall detract from the aesthetic appeal of the neighbour's property
A boundary wall is generally defined as "any wall erected on, above or over the physical boundary between two properties, so that they stand on or occupy space at least partially on both properties". This assumption that a boundary wall is built across both pieces of land, however, can be disproven by evidence showing that the property is built only on one person's land. The boundary of the property will determine which legal principles apply to the dispute - as shared boundary walls are dealt with differently to walls/fences built solely on one neighbour's land.
Boundary walls are considered to form part of municipal planning, which is a local authority competency in terms of Part B of Schedule 5 of the Constitution. In terms of Section 156 of the Constitution a municipality has the power to make and administer by laws for an effective local administration.
According to the National Building Regulations and Standards Act, 1977 (Act 103 of 1977) (NBR), any wall or fence that is higher than 1.8 metres requires plans and approval from the local authority. Property owners always need to check the boundary walls and fences policy followed by their local authority, as ultimately, what walls and fences they can and cannot build, is up to the municipality.
Any freestanding wall built with masonry, concrete, steel, aluminium, or timber or any wire fence lower than 1,8 metres in height at any point above ground level and does not retain soil, is classified as a "minor building work" that do not require plans. It does however require authorization by your local authority's building control officer before you can commence with any work. As long as you have made an application and have received the necessary permission from the local authority, you do not need plans. But the NBR is also very clear in terms of compliance with the regulations; minor building work must comply with the regulations.
Position of Boundary Wall or Fence:
The position of boundary walls and fences are determined by the cadastral lines of the properties, which are surveyed and pegged by land surveyors when land is zoned for residential use. These pegs generally get removed as soon as the land is built on. This is why it is so important to ensure that boundary walls and fences are correctly positioned in the first place. If there is a dispute between neighbours at any stage (and they could be completely different parties to those who owned the two properties when the wall was built), it may be necessary to get a land surveyor to resurvey the property according to the official diagram that is lodged with the Surveyor General in Pretoria.
If you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. And this includes the foundations which of course will be wider and longer than the wall itself. The structure will then belong to you.
The law also protects the structure from any action that may threaten its stability. For instance, your neighbour may not dig down next to your wall on his/her side if this is likely to wash away the earth if and when there are heavy rains. If he/she does some sort of excavation, they will need to erect a retaining wall (which will require plans) or some other structure that provides lateral support to the wall.
Ownership of Wall or Fence
If you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. And this includes the foundations which, of course, will be wider and longer than the wall itself. The structure will then belong to you.
Usually, however, neighbours agree to share the costs of boundary walls, in which case ownership is also shared. In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared.
Some local authorities state that each side is then owned by the property owner on each side; others say that the wall is owned jointly. If ownership is shared, either way, neither owner may do anything to the wall - i.e. they may not raise it, lower it or break it down - without the other neighbour's permission.
Who Is Responsible For Repairs?
If the title deeds do not specify that repairs are the responsibility of one owner due to e.g. a servitude, it is best for neighbours to agree to share costs. This should be done by an exchange of letters setting out what work is to be undertaken and how the costs are to be shared; alternatively, an attorney could draw up an agreement to be signed by the parties involved.
If the structure is damaged in any way, both neighbours are obliged to contribute to reasonable and necessary costs of repairs or maintenance of the wall. If the wall is damaged by natural forces such as wind or fire, either neighbour can repair or restore it, and the other party is obliged to make a reasonable contribution to the cost of repairs or replacement of damaged or destroyed party walls, if it benefits them as well. You cannot be forced to contribute if your neighbour decides to replace the existing wall with a better or more expensive one. Obviously, one neighbour cannot do anything that may affect or compromise the overall stability of the wall.
It is best to come to an agreement with your neighbour on the amount to be spent on the wall. Although both of you would be entitled to reasonable use of the boundary wall, fence or hedge, this right does not include reducing its strength or making it unstable. It does, however, include improving and altering the appearance of the side that fronts your property. Subject to local-authority regulations, you may use your side of the boundary wall as support for a beam or for water pipes. If it is strong enough, you may even build on it.
The owner of a wall which is not bound by servitude, is normally under no obligation to carry out repairs. However, in the case of deterioration that is likely to prove dangerous to the public, a local authority might order the owner of the property in question to carry out the necessary repairs. In any event, the owner will be liable for damage to your property caused by known defects (or defects that should have been obvious) - for example, if a wall collapses and damages your property.
Size of Wall or Fence
The Cape Town Municipality Boundary Wall and Fences Policy of January 2009, e.g. , requires that:
- Solid boundary walls may not be any higher than 1.8 m on street boundaries, and no higher than 2,1 m on lateral boundaries.
- Palisade-type fences may not be higher than 2.1 m on either street or lateral boundaries.
- Fences may not be higher than 2,1 m on street boundaries.
- The height of a boundary wall or fence shall be measured from the existing ground level abutting such wall or fence, provided that where the ground levels on opposite sides of a wall / fence are unequal, the height shall be measured from the higher of the two.
- Where 2 intersecting street boundaries of any property enclose an angle of less than 135 degrees, the maximum permitted boundary wall height above street level within 4,5 metres of the intersection of the boundaries is 1 meter.
- At least 40% of the surface area of a street boundary wall., including gates, if provided, must be visually permeable.
It is always advisable that neighbours should try to reach an amicable solution themselves over a cup of coffee, by resolving disputes surrounding boundary walls through meaningful discussions, before engaging with lawyers or even approaching the courts.