Fences between Properties

Whose responsibility is the fence?

Source: Reader’s Digest’s You and Your Rights

If there is no proof that a boundary (party) wall is entirely on one of two adjoining properties, the law will presume that half of the wall is on one property and half of it on the other.

On the question of ownership, some legal authorities hold that each part is separately owned by the owner of the property on which it stands, but that both owners have a reciprocal servitude of support. (See servitudes.) However, other legal experts argue that the wall is owned jointly by the owners of the adjoining properties.

The law relating to encroaching boundary walls reflects the influence of both theories. Say, for example, you were the owner of one of the adjoining sections: if at some stage you decided to transfer your property, you would automatically transfer your joint ownership. Moreover, neither you nor your neighbour may remove, raise or lower the boundary wall without the consent of the other.

If the wall is destroyed by an ‘Act of God’, such as a fire or an earthquake, both you and your neighbour would be expected to contribute an equal amount to have it re-erected (on the grounds that both of you enjoy an equal benefit from it).

While both of you are expected to contribute to the maintenance and repair of the wall, neither of you may tamper with it in any way.

Furthermore, although both of you have the right to reasonable use of the wall, this right does not include doing anything to reduce its strength or make it unstable. Improvements may be made to the structure and, subject to local authority regulations, each of you may even use your half as support for a beam or water pipes or, provided the half is strong enough, to build on it.

Boundary fences in agricultural areas

The Fencing Act, 1963, divides South Africa into areas that are either ‘obligatory’ or ‘non-obligatory’.

If you have a farm in an obligatory area and you wish to erect a boundary fence, you may demand a contribution towards costs from neighbours who will benefit from the fence.

However, you must send them written notice, stating the type and purpose of the fence, the date on which construction will commence, specifications, the total cost of erecting it and the contribution required (based on the value or benefit to them).

If, on the other hand, you want to build a fence in a non-obligatory area, you may request a contribution only if the fence will benefit your neighbour also. Say, for instance, you wanted to erect a fence to prevent your sheep from straying onto your neighbour’s farm which is devoted entirely to the production of honey, your neighbour will be entitled to refuse to contribute towards its construction since it will be of no benefit to him or her.

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