Navigating Boundary Disputes

A resolution to Property Encroachment

Maintaining a positive relationship with ones neighbours is what most would want but unfortunately boundary disputes are more common than expected and if not correctly dealt with can lead to a lot of acrimony as well as have an impact on a property's value.

Disputes often arise when one neighbour decides to sell, extend an existing building, maintain or change access or erect a fence or wall. Boundary information is brought to light and neighbourly relationships are put to the test.

Our client approached us to resolve a boundary dispute with her neighbour. With both properties situated on a steep slope below the road, access to the eastern side of our client's property was via concrete steps down the side of the buildings situated on our client's property.  The neighbour claimed that these concrete stairs were encroaching onto his property and as such he was well advised to contract a Land Surveyor to relocate the property beacons separating the two properties. Initial findings appeared to confirm that there was indeed an encroachment from our client.

Our subsequent survey, performed in terms of the Land Survey Act 8 of 1997, confirmed that the beacon placed by the neighbour's surveyor was in the correct position and that our client was indeed encroaching onto his property.  We replaced the beacons of the disputed boundary lines and placed additional beacons on the boundary line. A small detail survey was then carried out to determine the extent of the encroaching area and the position of the physical features in relation to the cadastral (property) boundaries.

In compliance with the Land Survey Act it is indisputable that the neighbour had a claim to the encroachment and was entitled to the land that he legally owns and for which he pays rates. He is fully within his rights to establish a wall or fence in the correct position regardless of the impact on our client's access to the eastern side of her property. 

Seeking an amicable solution to this dispute we advised our client of three possible options and scenarios:

1. The neighbour rebuild the boundary wall/fence in the correct position, thereby eliminating the access to the eastern part of our client’s property but re-establishing the boundary wall/fence in its correct and legal position. Poor neighbourly relations aside this not only limits our client's ability to maintain the area but may also devalue her property.

2. Create an Encroachment/Access Servitude over the neighbour’s property in favour of our client.  This would entail an additional survey to place the beacons of the encroachment in the position agreed upon by both parties.  Thereafter, a servitude diagram will be created and registered on both properties’ Title Deeds.  It is to the discretion of both parties to determine the agreement of a pro-rata payment for the use of the servitude. This is outcome appears to take care of the needs and concerns of both parties. Our client keeps her access and the neighbour is financially compensated.

3. Subdivide the encroaching piece of land (ie the concrete stairs mentioned above) from the neighbour’s property and consolidate with our client’s property.  Consequently our client would then have to purchase the subdivided piece from her neighbour and it would need to be consolidated onto the property of our client and will again be registered on both properties’ Title Deeds. Ultimately a no-strings-attached solution in that once complete there is total separation between the 2 parties. However this requires a full application to the local authority and can take up to 12 to 14 months to complete and premises that the buyer, our client, can afford to make the purchase.

Ultimately, our client agreed to the re-establishment the legal boundary wall and while this unfortunately reduced her access to the eastern portion of the property, this course eliminated the need for any further negotiations with the neighbour and any future problems which may have occurred.

Every boundary dispute scenario is different but ensuring that property owners have the correct information checked by a reputable Land Surveyor goes a long way to minimising conflict and ensuring a legal, fair and hopefully, amicable solution.