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Picture: Simei Verster of Neumann Van Rooyen Attorneys; Gerhard Kotzé, MD of the RealNet estate agency group.
The Covid-19 pandemic has taught us many things, including the real value of great neighbours – and the true awfulness of bad ones. And then there is also the law, regulating good neighbourliness and what neighbours should or should not indulge in.
According to Simei Verster of Neumann Van Rooyen Attorneys, in urban areas spaces are often limited. Resulting in situations where neighbours work on each other’s nerves. The famous “nuisance” claim is thrown around often, but what does this word mean in legal terms?
“A nuisance is any form of interference, encroachment or infringement with your property rights of use and enjoyment. Examples of such infringements would be, noise, pollution, obstructions such as plants overgrowing.
“The problem comes in with what degree of noise, pollution, obstruction etc qualifies as a sufficient amount to be a nuisance. In order to determine what qualifies, one must identify what the threshold is. The threshold is that a nuisance must be ‘reasonable’. Reasonableness is determined by balancing the two sides of the story. Balancing the right to use of enjoyment of property against the right of use and enjoyment of property of the other party,” says Verster.
The best time to find out which kind of neighbours you’re likely to have,” says Gerhard Kotzé, MD of the RealNet estate agency group, “is before you commit yourself to the purchase of a new home”.
It is true that property owners in South Africa have considerable rights in terms of the free use of their properties, he notes, but these rights are supposed to be balanced with the neighbours’ equal rights to the full enjoyment of their properties.
“They should thus not be exercised in an unreasonable way, and this premise is of course the basis for many of the conduct rules that apply in sectional title complexes and gated estates.
“However, things can become quite a bit more complicated in the suburbs, depending on homeowners’ individual tolerances for potential ‘nuisances’ like noise, traffic and other people’s pets, and the duration of any kind of irritation. What is more, the huge swing to working from home over the past year has heightened many people’s awareness of what their neighbours do all day – and considerably raised the potential for friction.”
For example, he says, you might not mind the occasional noisy weekend party next door, especially if the neighbours have been courteous enough to forewarn you. But loud music emanating from their home every day and night is very likely to be a serious problem, especially if you are trying to work from your home office. “Similarly, you might not previously have been bothered by the sounds of children playing in the garden, especially if you have a family of your own, but could be quite overwhelmed now by the all-day noise and traffic if your neighbours are running a nursery school or day-care centre.
“Other common causes of friction between neighbours are dogs that bark incessantly, trees that cast welcome shade in one neighbour’s yard while blocking light from another’s windows, revving engines and noisy leaf blowers, mowers and other machinery.”
Verster says balancing the different rights takes place by taking certain factors into account. These factors can include:
- Proportionality – meaning, the size of the two problems. If neighbour A complains of noise that neighbour B is making. But neighbour B was making that noise because of renovations on his house which were approved by the municipal council, then the complaint of A is disproportional to B’s purpose for the noise, and therefore not enough to satisfy as a valid nuisance complaint.
- Materiality of the infringement – this means what the quality of the infringement is. For example, if there is a tree root on neighbour C’s property that is causing one of neighbour D’s structural walls to collapse, this is seen as enough materiality. However, if the tree leaves of neighbour C’s property are simply touching a boundary wall, it will not be sufficient materiality.
- Motive – the motive of the plaintiff is important as a guideline in balancing the interests. For example, if neighbour E always complains about any noise that comes from neighbour F’s property, it will not count heavily in E’s favour in balancing interests. Motive means the reason for. So, if E complains because he does not want F to have a children’s party because E dislikes children, this will count against E in the balancing act.
- Whether there are less restrictive means to achieve the end. If neighbour G complains that neighbour H makes noise into the early hours of the morning. The simple solution would be for H to stop making noise at midnight, as opposed to not making noise at all in the evenings.
However, says Kotzé, while you can call the authorities and even go to court to stop unreasonable neighbours from doing things that drive you up a (garden) wall, these ‘cures’ tend to be costly and time consuming and also lead to permanent rifts in communities.
“Home buyers are thus much better off trying to avoid any such problems altogether, and their first step should be to ask home sellers how they like their neighbours and their lifestyle, and whether they are running any sort of business from home that brings additional traffic, raises noise levels or could be a security risk,” he says.
Verster emphasises that according to South African property law, every person has the right to use and enjoyment of his/her property. If one does something that infringes on this use and enjoyment, there is the possibility that you are breaking neighbour laws so to speak, granted that in the balance of probabilities, the plaintiff succeeds. Each municipality by-law will also determine what qualifies as a nuisance, and according thereto will an infringement be determined. It is definite that not every complaint will result in a reduction of the nuisance. The complaint will have to be reasonable before it will be worthy of addressing.
“One can apply for an interdict prohibiting the conduct causing the nuisance, once all other possibilities have been exhausted. It is suggested that one speaks to one’s neighbour to try and reach a compromise. If this is not successful, one can apply for an interdict, considering the guidelines and how that will impact your chances of success. Above all, remember, live and let live,”” Verster advises.
“Home buyers who are really concerned should also make a point of viewing any homes they are interested in buying a few times, on different days of the week and at various hours of the day, to assess the situation for themselves,” says Kotzé.
Meanwhile, he says, it is worth noting when you are viewing property that if you would need to replace an old fence with a wall to enhance security and privacy, the neighbour will not be obliged to pay half the cost. “If you have friendly neighbours and they feel that they and the value of their house will benefit, they might agree – but you shouldn’t count on it.
“And before a new wall is erected, you will need to take special care to establish exactly where your property boundary lies. It may sound unreasonable, but a neighbour will be entitled to apply to have your new wall demolished if it encroaches even a few centimetres on to his property.”
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