Friday, 27 August 2010

When a neighbour builds on your land

Good walls make good neighbours - or not
Barry Washkansky
27 August 2010

What recourse do you have if someone infringes building plans?

It is often said that it is easier to ask for forgiveness then permission. This seems particularly true in the property industry where homeowners often build and infringe on their neighbour's rights or property, usually both. Builders of new homes and renovators of existing ones often flout building regulations safe in the knowledge that either they won't be caught or that the possibility of being told to undo what is already done is slim at best.

There have been examples in the past when building has been stopped but this is more the exception then the rule. Sometimes residents get wind of the plans and do object in time, delaying or stopping the development /construction or at least getting the builder to amend the plans.

But what happens when someone infringes building plans and what recourse do residents have?

According to property attorney, Roland Darroll of Darrolls Attorneys (021 671 6408) there are three legal remedies available to the victim of invasive illicit building. He can apply for an interdict ordering removal of the encroachment, unless he knowingly allowed it. Secondly, he can claim damages, although any ‘knowing allowance' of the encroachment will reduce these.

Thirdly, he can offer (or the court in its discretion may order) transfer of, and claim compensation for, the land encroached upon in return for market-related compensation. This option is usually chosen where the results of removal would be more destructive or costly than the alternative.

This compensation normally consists of an amount for the land itself as well as a solatium. This is a fancy word for damages designed to ‘comfort' the injured party. This remedy began when the Roman Emperor allowed a childless mother to adopt, a practice that Roman Law at that time generally prohibited. In our case, it is for hapless landowners, understandably upset by the invasion of their land.

The above rules apply equally where the results of illegal building encroach on the vertical space above any adjacent land, i.e. in the case of roofs, beams etc.

Where the encroaching building stands on its own or can easily be split away from anything else, the victim can eject his neighbour and keep it. However, he will generally have to compensate the encroacher for value received."

When an alleged illegal construction is already underway, says Arno Watson, property lawyer from Mansons Inc (021 425 3822) the first option is a simple but not necessarily effective one. Report the infringement to the building inspector for that particular area. They will take it up and advise whether it is a "legal" structure or not i.e. whether the plans are approved or not and whether the work done is according to the plans. If it is not approved they will take it from there. If they regard it as legal, the only option would be to go to the High Court and ask for appropriate orders - this is only advisable if we are looking at damages of millions of rands and you have a good case. The costs alone will be hundreds of thousands of rands.

"Neighbours cannot just build without approval from the Municipality, which most cases would require the neighbours' consent, so they will know what is going to happen," says Watson.

The fact is that once built it can be a logistical and legal nightmare to undo work already completed. And, says Watson, it is still within the powers of the building inspectorate to order such demolition if there is no other option. Sometimes they may impose fines if they do not regard it as serious enough to order it to be taken down.

Thursday, 26 August 2010



1. Although the Matrimonial Property Act 88 of 1984 lays down the basic principles regarding the accrual system, the spouses themselves can also reach agreement as to certain aspects of its functioning. The initial value of a spouse’s estate at the time of marriage can be declared in an ante-nuptial contract. Spouses may also stipulate that the accrual system is to be excluded altogether or that the percentage of the accrual will be other than 50%.

2. Only when the marriage is dissolved will the accrual (increase) be determined. If the one spouse’s estate has shown no accrual or a smaller accrual than the other, the former spouse receives the right to payment of (normally) half the difference between the accrual of the respective estates of the spouses.

3. The starting point is the monetary value of all the assets of a spouse at the commencement of marriage less the monetary liabilities of such spouse. However the spouses are entitled to stipulate in their ante-nuptial contract that certain assets are to be excluded in calculating the initial value of the estate. The values indicated are provisional proof of the commencement value of an estate and are taken to be correct unless the contrary is proved.

4. Because of the principle in paragraph 3 and because often the commencement value needs to be proved ,often many years after the commencement of the marriage, the stipulation of an initial commencement value is to some extent a policy decision by the spouse declaring that value. In other words, spouses will declare their commencement values according to the values of assets presently owned by them that they wish to exclude from the accrual at the termination of the marriage by death or divorce.

5. When a spouse-to-be already owns minor assets such as odd bits of jewellery, furniture, clothing, other personal possessions, small savings accounts and bank balances and even a car of moderate value, not much significance is attached to them and the commencement value is often declared as “NIL”. However, when assets of some significance are owned and the owner spouse-to-be wishes to exclude them from the operation of accrual he will assess their present value and declare that as being the commencement value of his estate. Such assets could be things like immovable property, specialised and significant photographic or hi-fi equipment, a major investment in shares or a business and so on.

6. Therefore, when a party about to enter into an ante-nuptial contract asks the question “should this figure include furniture, jewellery, car etc..?” the answer is: it depends. If the value of the item is significant and the party wishes to exclude it from the operation of accrual, then its value should be included in the declared commencement value of that party's estate. Conversely, if the value is insignificant and it does not really matter at the end of the day as to whether it is included in the accrual or not, then that value may safely be ignored. Even if the value of an asset is substantial, if the party owning that asset does not mind if it forms part of the accrual, then it need not be declared.

7. From the above we can see that although the law does not specifically say so, in practice it is a question of the way in which the owner of the asset feels about the prospect of it being included in an accrual or not. Even then, this would not preclude the owner of the asset concerned who declared the commencement value of his estate as “nil”, from proving at the termination of the marriage that in fact he did own, say, a property worth, say, R 2 million at the time of the commencement of the marriage. The effect of this would be that the property would be excluded from the accrual even though it was not included in the assessment of the commencement value of that party's estate in the ante-nuptial contract itself. This is the effect of the principle that the commencement value stated in the ante-nuptial contract is merely provisional and the real commencement value stands to be proved at the time the marriage comes to an end.