THE ‘ROOT’ CAUSE OF TENSIONS WITH YOUR NEIGHBOUR

Imagine this: your neighbour has green thumbs and as a result enjoys an abundance of shade provided by trees they planted. Unfortunately, the roots are edging closer to your foundation and causing damage to your property, what can you do? Surely your neighbour is allowed to use and enjoy his property, but what if that enjoyment comes at the cost of your foundation or even your walls…

In South Africa, neighbours are entitled to the reasonable use and enjoyment of their property. However, this use does have limits. Where a neighbour’s use and enjoyment interfere with your own, it is advisable to first approach your neighbour in an attempt to amicably resolve the issue at hand.

The question then becomes, but what if my neighbour refuses or fails to remove the branches or roots? The Court in Malherbe v Ceres Municipality (1951) has confirmed that should the owner fail to remove the branches or roots within a reasonable time after the request was made, you may remove the branches or roots yourself and claim the cost of removal from your neighbour. The removal thereof must be limited to the boundary of the property.

It is worth noting that Courts are cautious when it comes to owners removing roots themselves. Removing the roots can destroy the tree or incur higher costs which may lead to disproportionate outcomes if costs are awarded. Preferably, an interdict compelling the owner to remove the roots should be sought, accompanied by a request for compensation for damages incurred.

Courts may order the removal of a tree if it poses a real and immediate threat of damaging the property. Vogel v Crewe and Another (2003) held that Courts view removal as an extreme remedy which will be considered in situations where the damage or risk of leaving the branches or roots is significant and ongoing.

Not every nuisance complained of will give rise to a legal remedy and as such the Courts will test the ‘nuisance’ complained of against the objective reasonableness standard. It is important to note that in order to successfully apply for a remedy, sufficient evidence must be provided indicating that the damage was indeed caused by the root system of the trees and that a reasonable person would not be expected to endure the interference. Minor inconveniences such as falling leaves or routine garden debris will likely not be enough to justify legal intervention

Therefore, should you find yourself in a situation where your neighbour’s tree is impeding your rights, try to find an amicable solution with your neighbour or contact VST before acting.