| nowheresville |

| nobody said anything about neighbourly love |

At some stage one is bound to encounter the impossible neighbour, he either finds fault in the most minuscule of details or is completely in-considerate. While the best first option is to approach this un-reasonable neighbour armed with a bottle of a wine and an attitude to try sort things out amicably, sometimes this is just not possible and one is forced to look for alternative remedies. While it may be an expensive route, one may find a remedy in nuisance law.

 

When dealing with a neighbours complaint, or when one is the complainant you will have to consider whether the nuisance is in fact objectively a problem. The courts apply the following test

‘that the inconvenience complained of was in fact more fanciful, and more than one of mere delicacy or fastidiousness; that it was inconvenience materially interfering with the ordinary comfort physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and simple notions. The standard taken had to be the standard not of the perverse or finicky or over-scrupulous person, but of the normal man of sound and liberal tastes and habits.’

 

In other words the problem complained of must be of a serious nature, and as neighbours we are required to tolerate the natural consequences of the use of land.

 

For everyone with annoying neighbourly trees, the answer may be that you will have to learn to live with them. In Vogel v Crewe 2003 (4) SA 509, there was a dispute concerning trees which had been planted along the boundary wall. The cement wall had been erected after the trees had been planted. The neighbour complained that the trees were causing damage to the wall, that the leaves were filling his pool and gutters and blocking his sewerage drains. De Vos J took into account that the trees had been there before the wall, and they had been planted 2 meters away from it. The court took a rather holistic view and held that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure but also functionally in the provisions of shade and oxygen. And like any other living thing they also require in return for pleasure provided a certain amount of effort and tolerance.’ Needless to say the trees lived to see another day.

 

If however you are one of the lucky few to live on a golf estate, and your problem lies with the amateur golfers who keep hitting golf balls through your window you may have a remedy. In the recent judgment of Allaclas Investments (Pty) Ltd v Milnerton Golf Club the SCA held that in the circumstances the amount of golf balls entering the property was clearly excessive and unreasonable.

 

The property was situated just 60m to 80m from the centre of the fairway, approximately 185 m from the tee of the 6^th hole. This distance as well as the fact that the house was within the 15 degree zone in the perceived line of play created a ridiculous situation in which 875 golf balls landed on the property in just over 2 years. The Milnerton Golf Club was given a month in which to rectify the situation by putting in appropriate nets to stop the golf balls. If the nets were not installed in this period, the Milnerton Golf Club could not allow play on the 6^th hole until such time as the nets were installed.

 

While one may find a remedy in nuisance law, the chances of success will largely depend on the circumstances. As a result one has to be objective about the nuisance caused by your neighbour, no matter how difficult that may be!

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delport ward & pienaar

attorneys, notaries &  conveyancers
1st floor - cornerstone house

16 loop street

cape town

8001

 

telephone, cape town
+27-21-419.3733

 

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+27-21-419.3743

 

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1st floor - cornerstone house, 16 loop street, cape town | docex 600, cpt | t, +27-21-4193733 | f, +27-21-4193743

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