Living next to neighbours can present any homeowner with a challenge. Whether neighbours are difficult or not, there may be times of conflict and of disputes, and it is helpful to be aware of the law and how it deals with such issues. In South Africa, a property owner is entitled to the free use and enjoyment of the property, as long as the owner does not infringe on the rights of the neighbour(s). This is because of the importance our law affords to ownership, and the comprehensive nature of this right.
Some common issues experienced between neighbours are the various forms of ‘nuisance’. It must be kept in mind that not all nuisances are actionable in a court of law. The test for an actionable interference by a neighbour on the normal use, enjoyment and convenience of a neighbour’s property by its owner is that of objective unreasonableness. When the disturbance is objectively unreasonable, a court will intervene. The question asked will be whether a normal person, finding himself/herself in the complainant’s position, would have tolerated the issue.
The guiding principle taken by the courts is therefore, in essence, one of ‘live and let live’. In this approach, some discomfort/inconvenience/annoyance experienced by neighbour “X” may have to simply be endured, if this can be reasonable expected of “X”. This concept necessarily limits the rights of “X” to the extent deemed to be reasonable by our law. However, it also imposes a duty on a home owner, who lives next to “X”, to exercise his/her rights within the normal and limits of reasonableness.
The result of this: Both neighbours’ rights will be limited by the duty to endure reasonable discomfort caused by a neighbour, and the corresponding duty of that neighbour to exercise his/her ownership rights reasonably.
The reason for this: Harmonious and happy neighbourly relations.
Two common examples of neighbourly issues:
- The nuisance of overhanging branches: When branches are hanging over from a neighbour’s property, the owner is entitled to cut these branches, after giving the neighbour reasonable notice to do so himself/herself first. However, the cuttings of such branches cannot be kept, unless the neighbour has been offered such cuttings and has decided not to take them.
- The nuisance of noise, which has two categories:
- Disturbing noise: This type of noise is objective and is defined as a “scientifically measurable noise level”, for instance, neighbours throwing a loud party; and
- Noise nuisance: This type of noise is subjective, and is defined as “any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person”, for instance, dogs that bark incessantly.
Disturbing noise is usually a once-off issue, and is governed by municipal by-laws. Therefore such incidents can be taken to the South African Police to be rectified. Ongoing noise nuisance, however, usually happens over an extended time period. To show that it exists in order for a court to assist, the noise must be such that a reasonable person would find it intolerable or to seriously effect his/her enjoyment of his/her property.
Another common issue is that of neighbours who renovate their home. While there are no specific legal requirements in the National Building Regulations and Standards Act relating to informing neighbours of building plans or requiring their consent to renovate, such requirements may be imposed by the relevant municipal by-law. Neighbours may be given the opportunity to object to building plans that depart from what is generally allowed, or may be required to consent to same. An objecting neighbour may not be able to prevent a renovation from commencing, as the municipality will still make the final decision, but the objection will be considered. Once a municipality has passed building plans, however, an objecting neighbour will not be able to challenge this decision. Instead, such a neighbour will have to challenge the municipality’s decision in court.
At the end of the day, an amicable resolution is usually the best outcome when issues between neighbours arise. An independent expert/mediator can be appointed in order to attempt to reach a solution that works for all parties involved, this ensuring that disputes do not end up in a court of law.