An innocent property owner may lose land on which a neighbour encroaches.

Given the close proximity of adjacent owners in residential areas, property owners are often involved in disputes with their neighbours. Encroachment disputes may occur when the neighbour builds a boundary wall or a structure which exceeds the true boundary line and encroaches upon the other's property.

An encroached land owner is, however, not without relief. One may report the encroachment to the local authority, which has the authority to issue a directive to demolish the structure. One may also approach the court for appropriate relief. Unlike the local authority, a court may grant urgent relief within a period of a day or two if there is real urgency.

Theoretically, an encroached owner is able to obtain an order for the demolition of an encroaching structure, as a primary remedy. Our courts are, however, displaying an increased reluctance to make such an order, particularly where it may lead to unjust and harsh results.

In cases of encroaching structures, in particular, our courts have shown a tendency to weigh up the respective owners' interests and, instead, order payment of damages or compensation to the aggrieved owner, as opposed to directing the demolition of such structure. Practically, the court would order the encroaching owner to take transfer of the portion of his or her neighbour's property that is encroached, in return for payment of financial compensation in the form of damages. Usually the encroaching owner would be ordered to fit the bill for all costs associated with such transfer.

In exercising its wide discretion, the court takes into account factors which endorse the principles of reasonableness and fairness. In practice, it considers the respective degrees of prejudice which may potentially be suffered by both owners, before granting any order. Financial redress, particularly in cases of encroaching structures, appears to rank higher than the aggrieved owner's real rights in ownership.

In the Cape High Court case of Trustees of the Brian Lackey Trust v Annandale, an encroaching land owner erroneously built a house across two adjoining properties to the extent that approximately half his dwelling encroached upon an undeveloped neighbouring property. After embarking on an exercise of weighing up the respective owners' interests against each other, the court held that the encroaching owner would suffer a disproportionately greater degree of prejudice if his near-complete dwelling was demolished. The encroached owner had not made efforts to develop the land and would, therefore, not suffer the same severe financial consequences as the encroaching owner would, if demolition of the dwelling was ordered. The court ordered the encroaching owner to take transfer of the portion encroached property and to pay the encroached owner a sum for damages.

It is debatable, depending on the circumstances, whether this practice unduly deprives a land owner of the common law right to do with his property as he pleases. This practice also opens the door for so-called property pirating, particularly where open land is left unattended, as one may easily acquire neighbouring property by building substantial structures on it and disguising it as an error.

An encroachment on neighbouring property can prove to be enormously costly to either owner and caution should be exercised well before the spades hit the dirt. It is advisable to employ a surveyor to map out the boundaries of neighbouring property when it becomes apparent that building operations of a neighbour are imminent. Whilst this may come at a cost, and perhaps an unnecessary cost in the end, it may turn out to be a cost well worth incurring.

Written by: Lauren Kent, Candidate Attorney and Lester Timothy, Associate at Deneys Reitz