In urban areas, spaces are often limited. Resulting in situations where neighbours work on each other’s nerves. The famous “nuisance” claim is thrown around often, but what does this word mean in legal terms?

A nuisance is any form of interference, encroachment or infringement with your property rights of use and enjoyment. Examples of such infringements would be, noise, pollution, obstructions such as plants overgrowing. The problem comes in with what degree of noise, pollution, obstruction etc qualifies as a sufficient amount to be seen as a nuisance. In order to determine what qualifies, one must identify what the threshold is. The threshold is that a nuisance must be “reasonable”. Reasonableness is determined by balancing the two sides of the story. Balancing the right to use of enjoyment of property against the right of use and enjoyment of property of the other party.

This balancing takes place by taking certain factors into account. These factors can include:

1. Proportionality. Meaning, the size of the two problems. If neighbour A complains of noise that neighbour B is making. But neighbour B was making that noise because of renovations on his house which were approved by the Municipal Council, then the complaint of A is disproportional to B’s purpose for the noise, and therefore not sufficient to satisfy as a valid nuisance complaint.

2. Materiality of the Infringement. This means what the quality of the infringement is. For example, if there is a tree root on neighbour C’s property that is causing one of neighbour D’s structural walls to collapse, this is seen as sufficient materiality. However, if the tree leaves of neighbour C’s property are simply touching a boundary wall, it will not be seen as sufficient materiality.

3. Motive. The motive of the plaintiff (the one complaining) is important as a guideline in balancing the interests. For example, if neighbour E always complains about any noise that comes from neighbour F’s property, it will not count heavily in E’s favour in balancing interests. Motive means the reason for. So, if E complains because he does not want F to have a children’s party because E dislikes children, this will count against E in the balancing act.

4. Whether there are less restrictive means to achieve the end. If neighbour G complains that neighbour H makes noise into the early hours of the morning. The simple solution would be for H to stop making noise at midnight, as opposed to not making noise at all in the evenings.

Now, is one required by law to not be a nuisance?

According to South African property law, every person has the right to use and enjoyment of his/her property. So therefore, if one does something that infringes on this use and enjoyment, there is the possibility that you are breaking neighbour laws so to speak, granted that in the balance of probabilities, the plaintiff succeeds. In addition to this, each municipality by-law will determine what qualifies as a nuisance, and according thereto will an infringement be determined, alongside the guidelines mentioned above. The four points mentioned above are merely guidelines. However, what remains is that not every complaint will result in a reduction of the nuisance. The complaint will have to be reasonable before it will be worthy of addressing.

So, what can you do?

One can apply for an interdict prohibiting the conduct causing the nuisance. However, one cannot apply for an interdict unless all other possibilities have been exhausted. So, as a point of first call, it is suggested that one speaks to one’s neighbour to try and reach a compromise. If this is not successful, one can apply for an interdict; considering the guidelines mentioned above and how that will impact your chances of success.

Above all, remember, live and let live.

References

Gien v Gien 1979 2 SA 1113 T.

Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others 2008 (3) SA 134 (SCA).