Tue | Dec 18, 2018

A Matter of Land | My wall is on my neighbour's property, what can I do?

Published:Sunday | March 11, 2018 | 12:00 AM
Craig Francis
Boundary wall separating two properties.
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Good day, readers. Today, I respond to another query from a reader. Please be patient with me and the timing of the responses as they are many and care has to be taken to ensure that accurate responses are given.

Good day

I recently did a survey on my property and the concrete wall used as fencing is 0.6 metres on a neighbouring property. Is this a breach that must be corrected? Will I have to destroy the wall fence or take the matter to court?

Would it also restrict me from getting a loan from the bank if the property should be used as security?

Thank you.

Concerned resident

Good day, concerned resident,

You have a situation that requires immediate attention if you intend to use the property as a security for a loan.

As I have written before, a breach and an encroachment are different things. You have asked if it is a breach and the answer is no. It is an encroachment on the neighbour's property.

 

What is a breach?

 

A breach, as it is commonly referred to, is a failure to obey the restrictive covenants that are on a title, or in the annexure 'B' of the strata title, or in the articles of transfer for a particular title or titles.

The literal meaning of the word is: a failure to maintain something or a failure to obey, keep, or preserve something. So a breach of a restrictive covenant is a failure to obey or keep one or more of the stipulations of the restrictive covenants.

So if there is a restrictive covenant that states that your gate must open inward and you build your gate so that it open outwards that would constitute a breach of that restrictive covenant.

 

What is an encroachment?

 

Encroachment is a term which means 'advance beyond proper limits'. Essentially, it means that one person advances, or violates, his boundary limits by building something on the neighbour's land, or allowing something to hang over the adjoining property boundary.

This usually happens when an owner is not aware of his property boundary or does, and wilfully chooses to encroach.

Note that the encroachment can be either a building or its eaves/cantilever, or even a dividing fence incorrectly constructed.

So an encroachment means that you have violated a property that is not yours. You do this by overstepping your legal boundary and 'advancing beyond your proper limits'.

In this case, you have violated your neighbour's boundary by two feet and it needs to be rectified.

You and your neighbour can have dialogue and you decide if you would like to acquire the strip of land on which you are encroaching, or if you will just demolish the boundary wall and rebuild it on the boundary this time.

You will first need to have your land surveyor mark the boundary so that the registered proper boundary is known.

However, the construction of the boundary fence is a cost that is to be shared equally between you and your neighbour.

To the question if you would be restricted from getting a loan, the answer is yes, as most institutions would not lend on a security that has an encroachment.

So my advice to you is to have this matter resolved as expeditiously as possible to free your property in the event you need to use it as a security for a loan.

Keep sending your questions and comments and let's continue to explore A Matter of Land. 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.