Neighbour (Tree) Wars

Who is liable for trimming that overhanging tree?

Your property rights begin and end at the boundaries of your property. Your neighbour has a right to "the enjoyment of his or her own property", which includes planting trees (even if they obstruct your view or block your sunlight). This right is also restricted to a certain extent, namely - if you can prove that your neighbour has planted a tree deliberately to cause a nuisance to you (in which case you may be able to claim Damages, or even obtain an Interdict for the removal of the trees).

If your neighbour’s tree obstructs the sun, and therefore causes a lot of unwanted shade during most of the day; if his leaves cause obstructions in your gutters and blocks the automatic pool cleaner; if his roots obstruct your sewage system - you can request your neighbour to attend to it - the tree is on his property after-all.

There are no by-laws covering trees belonging to one’s neighbour (this matter is governed by common law). Existing by-laws only refer to branches of trees that are overhanging onto pavements and sidewalks (municipalities may instruct owners to cut back their trees if they overhang onto the pavement).

If branches of the tree, or its roots encroach onto your property, you may ask your neighbour to cut and remove the branches or the roots (preferably keep proof of such correspondence). If the request is ignored, then you may cut back the branches to the property line (to the point it protrudes over the wall into your property). You are not allowed to lean over the wall to cut those branches at the neighbour’s side of the wall or enter your neighbour’s property to prune or remove the tree without permission, as this would amount to malicious damage to property and trespassing. You may claim the cost of trimming/removal from your neighbour.

You are not allowed to keep the cuttings, unless your neighbour refuses to take them (in which case you are allowed to dispose of it). Branches that you have cut, should not be thrown back into your neighbour’s erf - no matter how tempting.

Consider the balance of the tree - removal of a large branch may destabilise the tree, which may fall over during a storm and damage your wall or house. Also be cognisant of where you plant new trees, so as to avoid any of these issues in future.

If life gives you lemons that you could reach from your neighbours overhanging branches, you may not pick them off the tree, but you may collect the lemons that have fallen to the ground.

If the neighbour refuses to attend to the matter, and if you are not able to access the tree from your property (due to the height of the branch) then you may approach the Court in order to obtain an interdict compelling the owner to remove the branches (a prohibitory interdict will prevent similar encroachment in future).

It is advisable to discuss the matter with your neighbour, instead of going to Court; especially in cases where leaves are falling in your swimming pool, or in gutters of your house (or to simply remove the leaves yourself). You will have to prove to the Court that the inconvenience caused to you by your neighbour’s tree is more than you just being sensitive, and that it actually constitutes a nuisance. The standard that the Court will use is that of a "Reasonable Person". The Court will consider the dispute and the decision will involve the balancing of your and your neighbour's competing rights/interests.

The trouble of cleaning one’s gutters on a regular basis will have to be weighed against the benefits of the tree to the neighbour (e.g. providing fruit, privacy and shade) and of late the Courts have really started focusing on the impact on the environment. Judge De Vos noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen (Vogel vs. Crewe and another (2003(4) SA 509(T)). Like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance, such as regularly cleaning one’s own gutters.

Do remember that certain trees are protected under the National Heritage Act. Trees older than sixty years are also protected by national law, which makes it a criminal offense to damage or remove them. There are various invasive and alien trees listed by the Department of Environmental Affairs. Getting rid of these trees should therefore be addressed under environmental legislation.