Fri | Oct 20, 2017

A Matter of Land | Help! My neighbour wants me to pay too much

Published:Sunday | September 10, 2017 | 12:00 AM
Craig Francis
A basic dividing wall is all the law requires.
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Good day, readers. This week we respond to another reader who has a query.

Good day Mr Francis,

I read your column and find it very interesting and informative.

I recently read where you spoke about the dividing fence between neighbours. I am having a problem in that regard and I hope you can assist me.

My neighbour is building a really fancy expensive stone-cut wall between the two properties. I am not able to afford the half cost which he has indicated that I should pay. The price he has proposed is more than the cost to erect the dividing fence I had received an estimate for and what I had planned to build.

He is trying to force me to pay and has told me that I have to pay what he is asking or he will take me to court, and that the court will force me to pay it.

He says if I go this route he will also be seeking his legal fees and it will cost me more.

Help me, Mr Francis, as I don't have the money to do this.

Regards,

GD

 

 

Good day GD, and thank you for your continued support.

You have asked a very crucial question and it's one that many property owners will want answered as they face similar situations with their neighbours.

I am happy that both you and your neighbour are being guided by The Dividing Fences Act. This states in Section 4 that every occupier of land shall, as between himself and the occupier of the adjoining land, be liable to bear one half of the expense of erecting and maintaining a sufficient dividing fence to separate their respective holdings.

A 'dividing fence' means any fence which separates any holding from any other, and shall be deemed synonymous with the term 'line fence'.

However, section 5 goes on to qualify what is meant by the term 'A sufficient dividing fence'.

It states, "A fence shall be deemed 'sufficient' for the purpose of this act when it is high enough, strong enough and close enough to prevent ordinary animals, other than pigs and goats, of the kind kept on the one holding from trespassing on to the other".

This section is partially what would guide you in your situation now. You are required to pay half the cost for a fence that is sufficient, not one that is extravagant.

A wire fence or a chain-link fence can be a sufficient fence, so in this case you may consider the cut, stone wall extravagant and you are not required to pay a half of that cost but a half of what it would cost to erect a 'sufficient' fence.

Also, section 6 of the Dividing Fences Act requires that you both come to an agreement as to the cost to be shared to erect the dividing fence.

In the failure to come to an agreement, said fence can still be erected and costs recovered. However, again you are not only protected by Section 5 of the act which states what is a sufficient fence but also by Section 8 which states:

"If, in any action brought under section 6 it shall appear to the court that the plaintiff has erected a fence of an unreasonably costly character, or that he has paid an excessive sum for the fence erected, or for the repairs required to be done, the court shall determine what would have been the cost of a reasonably proper fence, or what should properly have been the cost of the fence erected or of the repairs required to be done, and he shall award the plaintiff a sum equivalent to the defendant's half of the cost aforesaid after deducting therefrom the value of the work done by the defendant, if any."

So, GD, you are not required to agree to pay half of this expensive stone wall if you are not able to afford it.

Please first ensure that the boundary line has been adequately defined by your commissioned land surveyor, by him identifying or replacing the boundary pegs.

Until next time, traverse well.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services