6 Briefly discuss the facts and decision in Malherbe v Ceres Municipality ( (4 ) SA (A)). (10) Facts The appellant, Malherbe, approached the court for an. In Malherbe v Ceres Municipality () the Court confirmed that if the branches of your neighbour’s tree overhang onto your property, or where the roots grown. prescribed text book. ▫ Malherbe v Ceres Municipality 4 SA A.(Case number [8] in the case book). ▫ Gien v Gien 2 SA T.(Case number [5] .

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No case had been made out why the removal of municipaliyy trees was necessary. Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property. The good neighbourly relations which existed between the two parties were gradually being marred by these trees as Vogel was of the opinion that the trees were causing a nuisance to him.

TROUBLE WITH THE NEIGHBOURS

In instances where branches overhang from the trees of a neighbouring property, neighbour A may request that neighbour B remove those branches and if neighbour B refuses, then neighbour A may have the branches removed and claim the cost of removal from neighbour A. The Court confirmed that the test to be applied in deciding whether the nuisance complained of is actionable in other words, is worthy to be determined by means of a Court actionis the objective reasonableness test which seeks to strike a balance between the competing interests of the parties.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. But often more than a fence is needed to maintain good neighbourly relations! In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.

No case had been made out why the removal of the trees was necessary. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging his concrete wall and parking area. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.

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Should you require legal advice please contact one of our attorneys directly at the given contact addresses. Surely his enjoyment cannot be at the cost of someone else? In Vogel v Crewe and Another 4 SA T where the applicant and respondents were neighbours whose properties were situated adjacent to each other.

Trees with lateral root systems are often a culprit in neighbourly disputes. This will only result in high legal costs and an inevitable, irreversible falling out with your neighbour.

ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS

If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them.

In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes.

No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. Based on the evidence before it, the Court dismissed the application as: In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.

This should not be seen as an encouragement to neighbours to take the law into their own hands as our law does make provision that the owner of an adjacent property may cut overhanging branches himself only after he has requested his neighbour to do so and he has refused.

Always contact your legal adviser for specific and detailed advice. As there are more and more of us, property owners need to be increasingly tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and their trees. He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property? Applying these principles, the Court indicated that it is also crucial to bear in mind that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.

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And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance. Munickpality and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. Some particular instances are described hereafter. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging the concrete wall and his parking area.

Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered.

ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS – TMJ Attorneys

Trees on city-owned land that has been leased out, is the responsibility of the lessee, but approval for any work must be obtained from City Parks in writing. They should not be construed as legal advice. Such materials are for informational purposes only and may not reflect malherbs most current legal developments. The branches can only be cut in line with the boundary.

Due to the threat to the property the house the court ordered the municipality to remove the trees. Requests therefore must be directed to municipapity Area Manager for City Parks for the particular area where the tree is located.