Help! There's a neighbour in my garden

Imagine waking up in your new home to the sight of your neighbour strolling across your front lawn.

In the case of our client this was a true story as having bought a property in 2021 they later discovered that their neighbour had rights to use their garden!

No-one wants to read through legal documents. The legalese is longwinded and often difficult to understand. However, buyers who skim through the numerous points risk overlooking important information.

For more recent property transactions these risks have been minimised when changes to the Properties Practioners Act in February 2022 saw the introduction of a Mandatory Disclosure form designed to allow purchasers to make informed decisions and which, if necessary, would facilitate the resolution of any disputes arising at a later date. Unfortunately for our client this protection was not in place at the time of their purchase.

After consulting various professionals, our client later realised that their property was subject to two servitudes, a Right of Way (R.O.W) servitude in favour of their rear neighbour and a Garden servitude allowing said neighbour to enjoy the area (a 15m wide patch of grass). Back in 2004 the previous owners included these servitudes as conditions in the Title Deed when they had Subdivided the property and later transferred the Portions that our client and their rear neighbour now own. The aim was to provide access to, and share, the garden.

Privacy issues aside, the garden servitude became an issue when our client proposed further subdividing their property. They planned on retaining the existing dwelling unit and allowing for their son to build his own home on the proposed Subdivision, providing him full title ownership of the new Subdivided Portion. Subdivision permission requires minimal erf size and with the garden servitude taking up a relatively large area it negatively impacted on the proposed subdivision and development of the new house.

Luckily with the input of experienced professionals these matters are often resolvable. In this case, we at Button & O’Connor Inc. proposed a few options that would assist the client to achieve their developmental goal. The client chose the route below.

‘Combined application for the: -

1.    Removal of Restrictive Conditions on the property Title Deed (relating to the Garden servitude and the R.O.W servitude),

2.    Removal of Servitudes (Garden and R.O.W. Servitudes) on the [property],

3.    Subdivision of the [property] into one Portion and a Remainder.’

Button & O’Connor Inc. undertook both the Town Planning and Land Surveying aspects. The application was submitted to the respective Municipality in terms of the Municipal Spatial Planning and Land Use Management Bylaw, and the Municipal Land Use Management Scheme. The application was approved within a matter of months in terms of the Land Use Management processes. The surveying aspect was later approved in terms of the Land Survey Act 8 of 1997, thus allowing the owner to undertake the Removal of Title Deed Conditions and transfer of the new Subdivision through a Conveyancer.