When a neighbour builds on your land

Good walls make good neighbours - or not
Barry Washkansky
Realestateweb.co.za
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.