A property owner claims that their neighbour claims that they have the right to pull down their garden fence which was erected by the previous owners of the property. They want to know what they can do in this situation.
Tarryn Gravenor, attorney and conveyancer at Herold Gie Attorneys responds:
It often happens that walls or fences between properties are erected in the wrong place or are skew, either on purpose, or in error. This leads to an encroachment scenario which presents challenges for the current and future owners of both properties.
When the property is sold, the seller of the encroaching property would be obliged to disclose the encroachment to any purchaser.
To determine whether or not the fence is situated on your property is a question of fact and it would be advisable to obtain the input of the local municipal building inspector and, if there is doubt as to the exact whereabouts of the boundary line, a professional land surveyor.
If the land survey records reveal that part of the fence is on your neighbour’s property, then it would be prudent, and for the sake of certainty and security and to avoid potential disputes down the line - for you and your successors in title - to have a garden and fence encroachment servitude registered over the neighbour’s property in favour of your property. The terms of the servitude agreement would need to be negotiated with the neighbour and reduced to a Notarial Deed of Servitude which would then be signed by you and neighbour as current respective property owners.
The Notarial Deed would then need to be registered against the title deeds of both your and your neighbour’s property, making its effect valid and binding on not just present but also future owners of both properties. An alternative would be for you to purchase the thin sliver of land on which your fence is situated from the neighbour and then consolidate that thin sliver of land with your Erf. In either instance the provisions of both the Deeds Registries Act and the local municipal planning by-laws would need to be met and usually a servitude diagram, alternatively subdivision and consolidation diagrams prepared by a professional land surveyor, would be required for lodgement and registration at the Deeds Registry together with the Notarial Deed or Deed of Transfer, as the case may be.
If the property is being sold, the registration of the servitude or subdivision and consolidation can be done simultaneously with the transfer of the property and should not cause substantial delays provided the matter is timeously and properly dealt with. If the encroachment is regulated in the absence of a sale then the existing bondholders would need to consent to the notarial servitude being registered, or to the subdivision and simultaneous consolidation of land.
* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.
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