"Leaf " your Neighbors alone

03 November 2022, Dries Knoetze 908

I recently dealt with a case where the harmony between two Neighbors were destroyed because of a tree planted in the one Neighbor's yard, but which tree's branches were encroaching onto the property of the other Neighbor causing a dispute between them.

This tree, a mulberry tree, not only sheds all its leaves in the winter but in summer, drops mulberries to the ground causing the next door Neighbor's paving to be stained with the purple fruit.

The question was what is the responsibility of the parties and what can be done if the Neighbor refuses to do something about the tree.

Now any encroaching on your Neighbor's property infringes the Neighbor's ability to enjoy full and undisturbed use of his/her property and that removal of the encroachment must therefore be the default remedy. However the courts have a discretion in some cases not to grant the removal order and to replace it with a compensation award.

In answering the questions above, it is trite that the plant planted in your property is part of your property and as such your responsibility. It should therefore be clear that you as owner has the responsibility to maintain and prevent this encroachment onto your Neighbor's property.

Now that it has been established that owner of the tree is responsible to remove the encroachment, the question is, what do you do if your Neighbor refuses. It should be noted that our court does not favor the self-help principle which means that the Neighbor being effected by the overhanging trees, takes a saw to the overhanging tree him/herself, but that you can approach a court with the necessary powers to obtain an interdict against your Neighbor to force him/her to do his/her responsibility and cut the tree.

This step is however costly and should proper advice be obtained before you take this step.

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