Boundary Walls, Encroachments and Neighbour Disputes: Where Is the Line, Legally?

Good fences are said to make good neighbours, but in our experience it is usually the fence itself that starts the war. A new owner commissions a survey and discovers that the boundary wall stands a metre inside her property. A neighbour’s builder pours a foundation that crosses the line. A carport roof drains onto the property next door. Boundary and encroachment disputes are among the most emotionally charged matters in property law, because they play out between people who must go on living next to each other. They are also more technical than most people expect, since the answer usually begins not with the fence, but with a diagram filed in the office of the Surveyor-General. In this article we explain how boundaries are legally determined, what the remedies for encroachment are, and how courts balance demolition against compensation.

The boundary is on the diagram, not the fence

Every registered erf or farm portion in South Africa is defined by a diagram or general plan approved by the Surveyor-General and held with the title deed in the deeds registry. The Land Survey Act 8 of 1997 regulates how land is surveyed, how corner beacons are placed, and how boundaries are determined, and it provides mechanisms for resolving doubt or disputes about the position of a beacon or boundary by survey. The fence, hedge or wall on the ground is, legally speaking, no more than evidence of where somebody once thought the boundary ran. Fences are erected for convenience, moved during building work and replaced over decades, and it is remarkably common for the fence line and the cadastral boundary to differ. The first step in any boundary dispute is therefore not a letter of demand but a professional land surveyor, who can relocate the beacons and certify where the true boundary lies according to the registered diagram.

What counts as an encroachment?

An encroachment occurs where a structure or part of a structure intrudes over the boundary onto neighbouring land, whether at ground level, below it or above it. Typical examples include:

• a building, garage or lapa erected partly over the boundary line;
• foundations or footings that extend under the neighbouring erf;
• eaves, gutters, balconies or carport roofs overhanging the neighbour’s airspace;
• boundary walls and fences built off the true line, effectively annexing a strip of the neighbour’s land;
• paving, decks and retaining structures that creep over the boundary.

Because the owner of land owns the space above and below it within the limits recognised by law, even an overhang with no footprint on the ground can be an actionable encroachment.

Remedies: removal or compensation?

The affected owner’s primary remedy at common law is an order for the removal or demolition of the encroaching structure. Courts have long recognised, however, that rigid insistence on demolition can produce unjust results, particularly where the encroachment was innocent and removal would destroy value out of all proportion to the harm. Our courts therefore exercise a discretion to award compensation instead of demolition. In Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C) the court held that this discretion is wide and equitable, based on considerations of fairness and reasonableness, and is not limited to trivial or minor encroachments; in that matter the court refused demolition even though the encroaching house covered a substantial part of the neighbouring erf, and awarded compensation instead. Where compensation takes the place of removal, it must properly reflect what the owner is losing, and can take account of the value of the affected land, the costs associated with any transfer of it, including survey and diagram costs, and a solatium for the involuntary deprivation.

Which way the discretion falls depends on the facts: the extent of the encroachment, whether it was made in good faith, what each party knew and when, the usefulness of the affected strip to its owner, and the cost and practicality of removal. An owner who stands by while a neighbour builds, and only complains once the roof is on, should not assume a court will order demolition.

Boundary walls between neighbours

Walls and fences generate disputes of their own. As a general rule, a wall built entirely on one owner’s land belongs to that owner, while a wall erected on the boundary line itself is treated as shared, with both owners responsible for its reasonable maintenance and neither entitled to alter or demolish it unilaterally. Municipal by-laws and the national building control legislation add a further layer: boundary walls above prescribed heights generally require approved building plans, and an owner who builds without approval may face enforcement action by the municipality quite apart from the neighbour’s civil remedies. Before building or raising a boundary wall, it is worth confirming both the true boundary position and the municipal requirements.

Nuisance and the wider neighbour law

Not every neighbour dispute involves a structure over the line. The common law of nuisance deals with uses of property that unreasonably interfere with a neighbour’s use and enjoyment of theirs: water discharged onto the property next door, encroaching tree roots and branches, dust, noise and the like. The test is one of reasonableness and mutual tolerance. Neighbours must accept the ordinary give and take of living side by side, but interference that goes beyond what a reasonable person can be expected to tolerate is actionable, and may be met with an interdict, a damages claim, or both. Encroachment and nuisance complaints often travel together, and a well-prepared case deals with both.

Practical steps before you litigate

1. Obtain the Surveyor-General diagram for both properties and compare it with what is on the ground.
2. Appoint a professional land surveyor to re-establish the beacons and certify the boundary.
3. Raise the issue with your neighbour in writing, with the survey in hand; many disputes settle at this stage.
4. Consider practical solutions: a registered servitude, a sale and transfer of the affected strip, or agreed compensation can all resolve the problem permanently.
5. If agreement fails, take advice promptly. Delay can weaken your position, particularly where building work is ongoing.

Conclusion

Boundary and encroachment disputes reward preparation. The party who arrives with the registered diagram, a surveyor’s certificate and a sensible proposal usually controls the outcome, whether that outcome is demolition, compensation or a negotiated transfer of the disputed strip. We regularly act in encroachment, boundary wall and nuisance matters as part of our property litigation practice. If a boundary problem is brewing on either side of your fence, contact us before positions harden.