Issue: What rights do you have as a property owner when your neighbour encroaches onto your property?
Here’s a question from Hanneli:
Sorry if this is too long, but it is a big problem for two years now. I live on the same street as my neighbor Alletta. In 2023, Alletta extended her house to be a double storey house, and the patio is going into my yard. It is not on my land, but it is over the wall into my yard. Like in the air in my yard. At first, I didn’t say anything because I did not know this would happen. I only noticed after the building was finished. I was so mad but I didn’t complain.
Recently, I get more upset because Alletta has parties all the time. But what really bothers me now is her tree. The roots from the tree go into my yard and they are damaging my driveway and making cracks. I am worried the roots are going to damage my house.
When I found out the cracks are from her tree, I talked to Alletta. She said the patio was built with permits and the overhang into my yard was not on purpose. She also said the tree is on her land and that I am exegarating the root problem. But the cracks are there. Alletta gave me some money for driveway repair, but she does not want to take out the tree or change the patio.
I am very frustrated because the municiaplity is not helping. I want Alletta to take down the patio or pay me for space it is using, like rent for the air where it is hanging over the wall. The money she gave is not enough to fix my driveway. I also want her to remove the tree so that it does not cause any more damage and I want her to fix my driveway. Please help.
From The Legal Desk:
* Please note this question was translated from Afrikaans to English.
Thank you for your question, Hanneli, and I’m sorry to hear you are having problems with your neighbour. During the COVID-19 lockdowns, I recall an individual on social media expressing frustration over conflicts with their neighbour. Both had been forced to remain at home and had realised, perhaps for the first time, just how much they disliked each other. The experience highlighted an important truth: living as neighbours is akin to being part of a family. It requires considerable compromise and a spirit of approachability to ensure that one’s home does not become a source of constant distress. However, as is inevitable in many neighbourly relationships, misunderstandings arise, and at times, disputes escalate into full blown conflict. It is precisely in these situations that the law steps in. Let’s take a look at the legals…
The foundation of neighbour law is that land must be utilised in a manner that does not cause prejudice or undue burden to another. This principle is encapsulated in the Latin maxim sic utere tuo ut alienum non laedas, which translates as “use your property in such a way as not to injure that of another.”
When a neighbour’s property encroaches upon your land, this is termed encroachment. Encroachments can arise in two forms (both of which are at play in your case):
(1) from buildings extending into a neighbouring property, and
(2) from the roots and branches of plants growing on neighbouring land.
The principle governing the extent of a landowner’s entitlements to their property is expressed in the maxim cuius est solum, eius est usque ad coelum et usque ad inferos, which translates as “to whomsoever the soil belongs, they own it all the way up to the heavens and down to the depths of the earth.” This principle is recognised in South African law, and any interference with these entitlements may result in various legal remedies.
Under common law, a landowner’s right to build upon their land was virtually unrestricted. However, this has been constrained by various statutory provisions, notably the National Building Regulations and Building Standards Act,1 which regulates the nature and standard of buildings on urban land. Despite these statutory measures, the cuius est solum rule still applies, limiting a landowner’s vertical and subterranean rights. This means that the foundations of buildings, or any extensions to those foundations, may not exceed the boundaries of the land, either beneath or above the surface.
In your case, your neighbour Alletta’s building encroaches into your airspace, and her tree extends its roots into the subsoil of your property. Should such encroachments occur, you, as the landowner, have the following remedies available:
(a) Removal
As the landowner, you may demand the removal of the encroaching part of the building. However, this process must be undertaken by Alletta herself, as you cannot remove the encroaching structure. As was held in Smith v Basson,2 you are not permitted to remove the encroaching patio yourself. If Alletta refuses to comply, you may need to seek a court order. In determining whether the encroachments must be removed, the court will consider reasonableness and fairness, as articulated in Rand Waterraad v Bothma.3 Factors such as the length of time since the landowner became aware of the encroachment, the nature and extent of the encroachment, and the cost of removal relative to the damage caused will guide the court’s decision.
(b) Compensation
If you, the landowner, do not choose to exercise your right to removal, or if removal is deemed unreasonable, compensation may be awarded. The court has considerable discretion in awarding compensation where removal would be impractical or unjust, as seen in Trustees of the Brian Lackey Trust v Annandale.4 If Alletta offers compensation instead of removal, the reasonableness of this offer must be clearly outlined in the defence. Based on the limited facts you have provided, it seems that compensation may be the most likely outcome. Since you did not raise objections to the patio immediately, and given the potential cost of removal, it is likely that compensation will be favoured.
(c) Transfer and Compensation
Though this option may not appeal to you, it is worth noting that a court can order Alletta to transfer ownership of the encroaching portion of land to the plaintiff, along with compensation. This remedy may include the cost of transfer, the value of the land without the encroaching structure, and damages for the loss of the landowner’s property. In Meyer v Keiser,5 it was held that this remedy applies when the encroachment is substantial. In this case it does not sound like the encroachment is substantial. Nonetheless, should this option be exercised, Alletta cannot seek to acquire the entire property where the encroachment occurred, nor can she do so in lieu of paying for the encroachment.
(d) Termination and Compensation
A further possibility, albeit unlikely, is the termination of Alletta’s occupation of the encroaching building. In such cases, she would be entitled to compensation for the improvements made to the land. I say “unlikely” because this remedy is available where the encroachment constitutes an independent structure, rather than being an incidental part of the neighbouring building.
The remedies for encroachments by plants differ from those available for encroachments by buildings. The following principles apply:
(a) Cutting Off Encroaching Branches and Leaves
The landowner has the right to request that their neighbour remove the encroaching branches and leaves within a reasonable time. If the neighbour fails to comply, the landowner may seek a court order for removal or may remove the branches themselves, as in Malherbe v Ceres Municipality.6 However, the landowner is not entitled to retain the branches unless the neighbour gives permission or neglects to remove them.
(b) Ownership of Plants
Once plants have taken root, they become the property of the neighbour under the doctrine of plantatio et satio. The neighbour may then choose to remove or retain them at their discretion. However, the landowner is not entitled to demand the removal of plants growing on the neighbour’s land, as confirmed in Smith v Basson.
(c) Removal of Encroaching Roots
If tree roots from a neighbouring property extend into the landowner’s land, as is the case with you, you, the landowner may remove them, as held in Bingham v City Council of Johannesburg.7 Similarly, as mentioned above, in Malherbe v Ceres Municipality, it was affirmed that the landowner may cut back branches and roots encroaching onto their land, provided the neighbour has been given a reasonable time to act. Regarding the removal of a tree, it is advisable to attempt to reach an amicable resolution with Alletta before resorting to legal action. If the roots present a significant and immediate risk of damage to your property, you may seek a court order for removal of the tree.
Ultimately, in resolving disputes with neighbours, particularly those involving property encroachments, the most advisable (and cost-effective) approach is often to engage in direct, polite communication. If this does not yield a satisfactory result, mediation may offer a viable alternative. As with many legal matters, it is prudent to explore all avenues before resorting to litigation. Should all other options fail, engaging legal counsel may be necessary to resolve the matter. All the best.
Written by Theo Tembo
The Legal Desk 
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