GOOD FENCES MAKE GOOD NEIGHBOURS
Category January 2020
We are kicking off our Blue Chip series on people, property and problems with fences and more particularly boundary walls.
We had just opened our offices for the year when Mr X called in to tell us that the property next door to his home had been sold to a developer in 2019 who was now in the process of demolishing all structures on the property including a portion of the boundary wall between the development property and Mr X's home. Mr X had previously installed an electric fence on the boundary wall, and this would obviously be affected by demolition of one quarter of the wall at the front of both properties and perpendicular to a public road. When Mr X had seen the "Demolish here" notice on the wall, he was immediately concerned about the prospect of a building site next door with half a wall and no electric fence to secure his home. He immediately marched down to the Planning and Building Sections at the City of Cape Town where he was shown the plans and advised that the developer was entirely within his rights to demolish the marked portion of the boundary wall. Mr X was in equal measures outraged and perplexed and called us to ask how this situation could have arisen.
We could tell Mr X that boundary walls are governed by Municipal Planning and that there is a vast body of common and case law available too. A Google search for case law relating to boundary walls in South Africa returns nearly 27 million results in 0,52 seconds. Boundary walls are very clearly a big thing in our country. In brief, boundary walls fall under municipal planning competence and the City of Cape Town formulated an official policy in 2009 pending the promulgation of the by law to regulate not only walls and fences but also security devices such as electric fences, spikes and razor wire. The policy seeks to balance our right to safety and security against aesthetic considerations and the safety of the general public.
Pertinent to our Mr X is the question who owns a boundary wall? The law is clear on this and in the absence of proof that a boundary wall is wholly on one or other property, ownership is presumed to be shared. But then the legal position gets a little fuzzy with some local authorities holding that shared ownership means each property owner owns their side of the wall while other local authorities hold that the whole wall, both sides, is owned equally and jointly by adjacent property owners. Both ways mean that neither owner can make changes that affect the wall without the consent of the other owner. Each owner can prevent changes that compromise the structure of the wall and that would include the demolition of the wall. The big "If" for Mr X is what if the wall is wholly on one owner's property and this can easily be proved with reference to the boundary pegs? In that case, the owner is free to do with the wall as he wishes including demolition of the wall. Even if his neighbour has fixed an electric fence to "his" side. So, Mr X needed to determine where the wall was built exactly. Fortunately, both properties had the boundary pegs still in place which avoided the need for a re-survey by a land-surveyor to determine their position (not a cheap exercise) but then Mr X encountered the messiness of real life! The boundary wall had a kink and three quarters was quite definitely on his property, but one quarter was quite definitely on the developer's property. Real life is seldom as tidy as textbooks!
However, not all was lost for Mr X! We showed him that there was case law from the Western Cape High Court dealing explicitly with the rights of owners of boundary walls having to be balanced against the security and safety of neighbouring properties. The next step for Mr X would be to approach an attorney to address the security issue with the developer and his builder. However, Mr X had had in his own words "made a lot of drama" at the City's Planning Section and said that the staff had been sympathetic to his situation. Possibly word got back to the developer and Mr X was called by the builder who said that the plans had been amended so that the wall and Mr X's electric fencing would remain in place and untouched. Neighbourly consideration and compromise had won the day.
Author: Bronwen Woodward