By Chantelle Gladwin-Wood, Partner and Maike Gohl, Partner
Introduction
This article explains your rights as a property owner when a neighbour violates a building line or encroaches on your land.
Determining Building Lines
Every property has several imaginary lines that run along the inside of the property parallel to the borders, a few metres away from the actual borders. These are known as building lines. The position of the building lines is determined by the applicable town planning legislation. In order to determine where the building lines run for any given property, you need to get a copy of the property’s zoning certificate from the municipality’s town planning department (sometimes called the land use management department).
Violation of Building Lines
Where a structure is built over or “inside” a building line (meaning that the structure is built between the building line and the border of the property), this constitutes a violation of the town
planning laws that govern the property. This can be reported to the town planning department of the local municipality, which is obliged to investigate the violation and if it confirms that the law is not being complied with, it is obliged further to enforce the law by compelling the offending property owner to demolish or move the structure such that it no longer violates the building lines.
Application to Relax Building Lines
If a property owner wants to build over or inside a building line, application must be made to the municipality for approval to “relax” the building line and move it outwards towards the border of the property. In some cases, permission can be obtained to move the building line all the way out to the border of the property. The application is made to the municipality, and one of the factors that the municipality will take into account is whether your neighbours approve of the relaxation of the building line. If they object, the municipality might not approve your application. The final decision always lies with the municipality (and not with any objectors), so even if an objection is filed, the municipality may approve the application (and conversely, even if no objection is filed, the municipality may refuse the application).
Enforcement of Building Lines by Municipalities
This is easier said than done in some instances, however, because municipalities are often understaffed and it can take a long time for the relevant inspections to be done. Once it is confirmed that a building line has been violated, the municipality will normally send a letter to the offending owner requiring him/her/it to demolish or move the structure.
If the non-compliance is not remedied, a second letter is usually sent warning the owner that the municipality will approach a court for a demolition order if the violation is not remedied. If this second notice is ineffective, the municipality should then instruct its attorneys to approach a court for an order demolishing the offending structure/s. A municipality may also be able to penalise the offending owner by charging increased rates and taxes, if provision for this is made in the municipality’s tariffs and the correct procedure to implement the penalty tariff is followed.
Enforcement of Building Lines by Private Parties
If a municipality is not taking action (or the action is ineffective) to enforce the building lines, you can take action yourself by approaching an attorney for assistance in bringing an application to court to compel the demolition or removal of the offending structure. This can be done whether or not the municipality is involved or is assisting
Encroachment of your property
If your neighbour has built inside or over his building line or worse, has built over the border of your two properties, such that his building is built on your land, this is referred to an as encroachment on your property. The same applies when your neighbour has built his balcony, or roof, or any other protruding part of his building, over your land. This is unlawful, unless you have given permission to your neighbour to do so.
A municipality cannot assist you in having your neighbour remove the structure from your land, as it has no jurisdiction over this kind of dispute, from an encroachment perspective. Your neighbour can, however, be compelled by a court order (applied for by you or the municipality) to remove the offending structures from or over your land from a town planning perspective (i.e. it is built over the building line and must be demolished). If you would like to bring the matter to court yourself, you would need to seek the assistance of an attorney in this regard.
Demolition orders
Where your neighbour is violating a town planning law or is encroaching on your property, either the municipality or a property owner can apply for a demolition order in terms of various relevant laws. Depending on what law is used to justify the demolition, slightly different principles may apply. Broadly speaking, however, the principles are the same in all cases.
Many people think that a court won’t order the demolition of a structure because of the hardship that the owner will suffer (i.e. the financial loss). In addition, many people think that if they build their structures illegally (in violation of the building lines) and quickly before a court order to stop them or demolish is applied for, they will get away with it because the court won’t order the demolition once the structure is built. Both of these notions are misconceptions.
A court can order the demolition of a structure (whether it is partially or fully built) when it violates the building lines or any other building or town planning laws, if the owner has been called upon by the municipality or the owner of the neighbouring property to remove that structure and has failed or refused to do so. The financial loss that the law-breaker would suffer is no barrier to the court enforcing the law where it is appropriate to do so.
The court does, however, have a discretion to order that the law-breaker pay compensation to the aggrieved party, instead of ordering demolition, where this would be appropriate. The court will decide each case based on its own unique facts in assessing what manner of order would be appropriate in the circumstances.
When MUST a court order demolition?
There is only one case in which a court does not have such a discretion (where a court is forced to order demolition rather than to order the payment of compensation) and that is where an application is brought in the Magistrate’s Court by a municipality under section 21 of the National Building Regulations and Building Standards Act 103 of 1977, for demolition based on non-compliance with the provisions of the aforementioned Act. This applies for example, if no building plans have been submitted for approval and the building has commenced nonetheless, then a municipality would be able to approach a magistrates court and secure an order for the demolition of the building that has so been built.
Conclusion
Building disputes can become very complex very quickly and in order to safeguard your best interests, particularly where the value of your property is being affected by your neighbour’s conduct, it would be best to seek the advice of an attorney experienced in this field of law. This is even more important where you are not getting the assistance or advice that you need from your local municipality.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case by case basis and you should consult an attorney before taking any action contemplated herein.
