South African homeowners face legal risks from overhanging branches, encroaching roots, and boundary issues, which could cost them thousands of rands.
Cor van Deventer, director at law firm VDM, explained that neighbours must expect certain inconveniences as urban living intensifies and properties shrink.
Even so, South African law recognises that no property owner should be deprived of the reasonable enjoyment of their land because of another’s trees.
“Neighbour law balances two competing principles: every owner’s right to enjoy their property without interference, and their neighbour’s equal right to health, comfort, and wellbeing on their own land,” Van Deventer said.
“Accordingly, owners have to ensure that overhanging branches, encroaching roots, or falling leaves don’t create an unreasonable nuisance to the adjoining property.”
Despite this, he noted that legal disputes between neighbours over boundary walls and messy trees are commonplace in South Africa, especially from March to May when autumn leaves fall into swimming pools.
Van Deventer stressed that homeowners need to check their title deeds before seeking legal or municipal help. These contain the boundary restrictions, which vary from 1.5 m to 5 m depending on the suburb.
“If you planted the offending tree – or bought the property with the tree – in the ‘no-go’ area, it’s your problem, not the municipality’s,” he said.
He explained that people often don’t realise that planting a tree will cause problems five years later.
“And I’m not only referring to leaves – I’ve seen roots take over completely, blocking drains and causing sewage to run into the garden, breaking walls, and in extreme cases injuring and even killing people,” he said.
Legal problems for homeowners
According to Van Deventer, something else to consider is the duty of both parties to maintain the boundary. “Even if it’s not falling in your direction, it’s still a shared responsibility,” he said.
“I understand that nobody wants to pay R30,000 if they don’t think the wall is going to fall down this month – but when it does? And if it injures or kills someone? You will be liable.”
Van Deventer cited the unforeseen tornado that wiped out parts of Tongaat in KwaZulu-Natal in June 2024 as an example of why people must prepare for the unexpected.
“One of the fatalities was the result of a wall collapsing on a woman, and there have been many other horrendous incidents over the years,” he said.
“Even if you begrudge spending thousands on replacing or repairing the boundary, you don’t want to end up in the High Court following a tragedy that could have and should have been prevented.”
Title deeds also specify municipal servitudes and wayleaves. Unlike servitudes, which are registered real rights, Van Deventer explained that wayleaves are contractual rights most often with communications and utilities service providers.
“These are created to prevent encroachment issues, zoning violations, safety hazards, and legal disputes,” he explained.
“And with the courts becoming increasingly environmentally conscious, you can expect them to apply an objective test of reasonableness to determine whether the situation constitutes a legal nuisance or not.”
He noted that the courts will weigh the pros and cons of preserving the tree versus cutting it down before ruling.
“If the damage to the wall is found to be minor and easily fixed, the court won’t support drastic measures like cutting the tree down,” he said.
“There have actually been instances where the courts have criticised the parties for escalating a relatively minor dispute into a costly legal battle – they basically rapped the parties over the knuckles for wasting time, money and resources.”
He recommended that South Africans start by speaking to their neighbours and see if they can agree on pruning the tree, when it will be done, how the branches will be disposed of, and whether it’s appropriate to share the costs.
“A cooperative approach will usually reduce the risk of disputes – and expenses – escalating. And remember that you can’t just go chopping off next door’s branches or digging out their trees,” he said.