Encroaching Building Lines and Boundaries
An owner of a fixed property (land) has the right to uninterrupted use and enjoyment of his/her property, subject to a few limitations imposed by current legislation and further subject to the opposing obligation to refrain from infringing on his/her neighbour’s rights to uninterrupted use and enjoyment of his property.
Every property has building lines that run along the inside of the actual boundaries of the property. The distance between the boundaries and the building lines is determined by the applicable municipality’s town planning legislation. It is a violation of the applicable town planning laws, to build any structure over the building lines, without the prior approval of the relevant municipality.
The boundary between two adjacent properties marks the line where a property owner’s rights and that of his neighbour’s begin and end. The boundaries are normally reflected on the survey diagram of the property.
What recourse, if any, does an aggrieved neighbour have in the instance when a neighbour builds a structure in a manner that encroaches the building line of the property of the offending neighbour or worst yet, that infringes or encroaches the boundary between the properties? Encroachment over the boundary line includes circumstances where your neighbour has built his balcony, roof, or any other protruding part of his building over your property. It is most important to note that an aggrieved neighbour may not resort to self-help to remove an encroaching structure. In the event of a building line encroachment, an aggrieved neighbour can report the encroachment to the town planning department of the applicable municipality. The municipality, in turn, is obligated to enforce the town planning legislation by investigating the violation and by requiring the offender to demolish or move the structure in question.
If a municipality fails to take action to enforce the building lines, or if an aggrieved neighbour believes that his rights to the uninterrupted use and enjoyment of his / her property has been violated, the High Court can be approached for the appropriate relief.
In the event of encroachment over the boundary between adjacent properties, an aggrieved neighbour who believes that his rights to the uninterrupted use and enjoyment of his / her property have been violated can approach the High Court for the appropriate relief.
This relief can be in the form of an interdict to prevent or stop the construction of the offending structure, an order requiring the removal of the offending structure, or an order awarding suitable compensation to the aggrieved neighbour in circumstances where the cost of removing the structure would be deemed to be excessive by the Court.
In conclusion, it is advisable to seek the advice of an attorney experienced in this area of law, to protect your interests as these types of disputes can be complex and contentious.
