Legal Update – What is the law between neighbours regarding trees and damage they create
Legal Update – What is the law between neighbours regarding trees and damage they create
A few years ago your neighbour planted a row of trees against your separation wall. Now the trees are fully grown and the branches and leaves regularly fall into your pool as well as blocking your storm-water drainage. Furthermore, the roots are not only beginning to lift your separation wall but also the pavement around your pool. What to do? Should you get to work and remove the roots yourself before your pool is also damaged?
It is a general principle in our law that a landowner (or lawful occupier of the land) is entitled to the use and enjoyment of the property provided that such use and enjoyment should not cause undue or unreasonable damage or inconvenience to your neighbour.
A land owner may thus plant trees on his property, but as a general rule, those trees may not interfere with the neighbour's use and enjoyment of his property or cause him damage. When a property owner plants trees near a separation wall there is accordingly a duty on him to ensure that the trees are maintained so that it does not become a nuisance or cause damage to his neighbour.
When it comes to trees and the damage that can be caused by them, there are three main groups to consider:
The first of these will be where branches hang over from the neighbouring property. In this case, the neighbour who is prejudiced is entitled to request the owner to remove the branches. Should the owner not respond to his request within a reasonable time, the prejudiced neighbour will be entitled to apply for a removal order or remove the branches himself and recover the costs from the owner. The prejudiced neighbour is not entitled to keep these branches for himself except with the consent of the owner or where the owner fails to remove the branches himself. The prejudiced neighbour may further apply for an order to remove any future overhanging branches.
The second will be in the case of leaves or fruit falling from trees on the adjoining property which land up in the waste and drainage systems or swimming pool of the neighbouring owner. In such a case, a property owner is usually not entitled to expect that his neighbour should come and remove such fruit or leaves. The reason being that the planting of trees and their fruit and leave waste is seen as the normal use of property and damage caused by the blockage of drains and pumps cannot be claimed because, according to our courts, this type of damage can be avoided by regular cleaning by a property owner.
The third group is where the roots of a neighbouring property's trees cause damage to a separation wall, pavement or even the adjacent property's foundation. In the case of roots, the owner can cut off the roots himself, and if this step is not successful, he can approach a court and ask that his neighbour remove the tree and request a compensation order for damages suffered.
Our courts are in agreement that the test to be applied to determine whether trees are a nuisance and cause damage, is the objective reasonable test. The test requires the weighing up of the interests of both parties in the light of the surrounding circumstances. Consideration will always be given to a party's duty to bear the burden to a reasonable extent and the other party's right to the reasonable use and enjoyment of his property.
It is true that when it comes to your neighbour one does not want to step on toes, but it is important to keep in mind that an owner is entitled to the use and enjoyment of his property without having to constantly feel obliged to pay for damage caused by a neighbour's actions. The best advice is always to try and solve such neighbourly problems amicably, but if no solution can be found, it is important to know that you have rights that can be protected and enforced.
Source: Miller, Bosman and LeRoux