What can you do when your neighbours trees, branches, leaves and/or roots encroach onto your property?

A1In an environment with decreasing resources and space, as well as an increasing demand for houses, property owners inevitably face problems with neighbours moving increasingly closer to each other.

Encroaching trees, leaves and branches are a common problem, with overhanging trees from neighbouring properties shedding leaves that interfere with gutters, pools, fences and yards.

A property owner who has trees close to their neighbour’s property must ensure that overhanging branches, fallen leaves or intruding roots do not cause a nuisance to their neighbours. Unfortunately, not all owners are conscientious about their neighbour’s property rights.

Should branches from a neighbouring property encroach onto your property, you have several remedies at your disposal:

  1. Retention of the branches and any fruit which may fall onto his or her property;
  2. A demand for the removal of the branches causing a nuisance, and if this falls on deaf ears, the right to remove the branches oneself and claim the costs of such removal from the offending neighbour. [See Smith v Basson [1979] 1 All SA 133 (W) in this regard].
  3. As a last resort, you may approach a court for a mandatory interdict which will compel the offending owner to remove the branches, and also seek a prohibitory interdict to prevent the reoccurrence going forward. In the case of Francis v Roberts [1973] 1 All SA 347 (RA), the court made it clear that especially in instances where a party has not rushed into litigation before exhausting the alternatives – such as civil discussion and compromise – the Court will willingly grant an interdict to stop or prevent “flagrant and persistent infringements” of a neighbour’s rights and space.

A few examples from case-law would also be instructive.

  • Harris v Williams 1998 2 SA 263 (W). A property owner successfully obtained an order for the removal encroaching branches from their neighbour’s yard. The order was granted based on the fact that the aggrieved property owner did not have adequate access to the area where the branches were located to remove the branches personally, and the neighbour had outright refused access or otherwise cooperate in the removal of the branches.
  • Vogel v Crewe and Another [2004] 1 All SA 587 (T). The court stated that in determining whether a tree or its overhanging branches constitute a genuine nuisance and merit removal, it will take into account whether a reasonable neighbour in the situation would consider the tree or its branches to be an “inconvenience materially interfering with the ordinary comfort, physically, of human existence.” Further to this the court found that the benefits of conserving the trees (aesthetic pleasure and provision of shade and oxygen) had to be weighed against the nuisance caused to the Applicant in question.

The above principles are also applicable to roots of trees and plants that encroach on neighbouring land either on or beneath the surface. The owner of the land onto which they are encroaching, is like empowered to remove these encroachments personally as was confirmed in the case of Bingham v City Council of Johannesburg 1934 WLD 180 (dealing with encroaching tree roots). Again, obtaining an interdict from a court always remains an option, if all else fails or there is no other suitable remedy.

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Errors and omission excepted. (E&OE) 

About the Author

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc., a Cape Town-based law firm specialising in rental property, contractual, consumer and company law. Marlon is the previous author of the TPN Residential Leasepack, the current author of PayProp’s rental documentation and preferred attorney to PayProp, IEASA South Africa, the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters.    Harcourts Maynard Burgoyne retains Marlon Shevelew and Associates Inc. as our rental property attorney and we are also a member of the Rental Retainer Club which gives us almost instant access to Marlon to clarify and advise on any legal matters pertaining to rentals. We also subscribe to his RentDoc service which we use for Letters of Demand and/or Breach with respect our residential lease agreements. Our residential lease agreement was also prepared in association with Marlon Shevelew and Associates.