By Sloan Wilson
This is the first article in a two-part series on neighbour relations.
It is an unfortunate fact of life that some people have little or no regard for the rights of others.
This disregard has, over the years, led to the development of a sphere of law sometimes known as “neighbour law”. There have been a number of court cases recently pertaining to disputes between neighbours arising from various issues which have prompted me to discuss this topic.
The general legal principle applicable to the sphere of “neighbour relations” is the following:
An owner’s entitlement to use and enjoy his or her property is restricted by the fact that neighbours have a similar right to the use and enjoyment of their own land.
One consequence of this general principle is that an owner may not use his land or allow activities to take place on his land which constitute a “nuisance” to neighbours. Nuisance may take various forms including allowing the escape of smoke, fumes, noxious smells and making excessive noise such as loud music, barking dogs and using machinery such as bandsaws etc. Excessive noise is one of the most frequent forms of nuisance.
In order for nuisance to be actionable it is generally a requirement that the nuisance be ongoing and isolated cases are generally not actionable. In other words the courts will generally not come to the assistance of an owner unless the nuisance complained of occurs on a continuous basis. Let me cite an example : A client of mine recently consulted me about the nuisance caused by his neighbour’s dogs. The dogs bark loudly and incessantly including late at night and in the early hours of the morning. The result is that my client is so sleep-deprived that it is impacting adversely on his normal life. My client has spoken and written to his neighbour about the problem but the neighbour has failed to do anything about it. (It appears that not only are the dogs world champion barkers but the neighbours are also world champion sleepers).
My advice to the client was that there is a good prospect of him succeeding with an interdict against his neighbour. In other words he could apply to court for an order that his neighbour take reasonable steps to prevent the dogs from causing an unreasonable disturbance.
Each case of nuisance is a question of fact and often the matter of degree and the test applied is one of reasonableness. The question is accordingly whether a reasonable person finding himself in the position of the aggrieved party can be expected to tolerate the nuisance.
Part 2 deals with the specific duties that one owner owes towards neighbouring owners.