ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS

Good fences make good neighbours?

A client of mine recently approached me vis-à-vis a neighbour’s tree uprooting paving in his driveway. Where do you stand as a property owner and what action can you take?

As there are more and more of us, property owners need to be increasingly tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and their trees.

Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves in the swimming pools and surrounding areas and also damage fixed structures.

In terms of our (private nuisance) law, every property owner has a right to unimpeded enjoyment of his land. So does the neighbouring owner, meaning that the latter’s health, well-being or comfort in the occupation of his land must not be interfered with. Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered.

If an owner plants trees near the border of his neighbour’s property the owner must ensure that the border is not affected by overhanging branches, fallen leaves or intruding roots.
If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner to remove the branches and if the owner fails to remove them within a reasonable time after demand the neighbour may:

a) remove the branches himself and claim the cost of removal from the landowner (Malherbe v Ceres Municipality (1951)) ; or

b) approach the court for an interdict compelling the owner to remove the branches, if necessary coupled with a prohibitory interdict forbidding similar encroachments in future.

However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. This will only result in high legal costs and an inevitable, irreversible falling out with your neighbour.

In Vogel v Crewe and Another 2003 (4) SA 509 (T) where the applicant and respondents were neighbours whose properties were situated adjacent to each other. The good neighbourly relations which existed between the two parties were gradually being marred by trees on Crewe’s property, as Vogel was of the opinion that the trees were causing a nuisance to him. Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging his concrete wall and parking area.

The Court held that conduct which infringes upon a neighbour’s health, well-being or comfort in the occupation of his land, with or without the causation of actual damage to a neighbour, could be called a nuisance. The test to be applied in deciding whether the nuisance complained of is actionable is the objective reasonableness test, requiring the complaining party to show that ”the inconvenience complained of is in fact more than fanciful, more than mere delicacy or fastidiousness; that it is inconvenience materially interfering with the ordinary comfort, physically of human existence not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.”

Applying these principles, the Court indicated that it is also crucial to bear in mind that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.

Vogel’s case on the merits was weak as he did not have conclusive evidence that the damage to the parking area was caused by the root system of the trees; that the blockage of his sewage system was caused by the leaves of the trees; or that the leaves in the swimming pool and gutters were exclusively from his neighbour’s trees. No case had been made out why the removal of the trees was necessary. Regarding the overhanging branches, the Court found that the problem could be resolved by way of Vogel requesting Crewe to prune his trees. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary.

Courts will not hastily decide that trees be removed if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees.

Thus should you find yourself in a situation where your neighbour’s tree are impeding your rights, seek legal counsel before acting or find an amicable solution with your neighbour.

The bottom line is that in the light of an increasing societal “greenness”, citizens need to be more tolerant of the inevitable problems caused by their neighbour’s trees and other greens.

Author: Andre Calitz (TMJ - Cape Town Office)

Email: andrec@tmj.co.za