The right to lateral support

If a landowner causes damage to the land and buildings of his neighbour through excavations on her property, does the neighbour have a right to claim damages?

Our law provides that landowners may use and enjoy their property in a manner that does not cause harm to or unreasonably interfere with the neighbouring landowner’s right to use and enjoy his land.

The Supreme Court of Appeal’s (SCA) decision in Petropulos & Another v Dias (Case no 1055/2018) [2020] ZASCA 53 (21 May 2020) had to decide the question regarding the correct interpretation of both the duty to provide and the right to receive lateral support from the owners of adjacent properties.

What is lateral support? A landowner’s entitlement to excavate the soil of their land for building purposes is limited by the duty not to withdraw lateral support from the neighbour’s land. The right of lateral support is reciprocal between neighbouring landowners. This is known as the principle of lateral or subjacent support.

In the Petropulos case, Petropulos and Dias owned adjoining properties in Camps Bay, Cape Town. The properties were located on a steeply sloped mountainside. Petropulos commenced excavations on her property, near the boundary of Dias’ property, to undertake extensive excavations and renovations to erect a structure three floors in height, as well as a lift shaft.

The excavations resulted in substantial structural damage to Dias’ home and he instituted a claim for damages due to the breach of the duty to provide lateral support and based it on the principle of strict liability.

The court had to decide:

  • Did Petropulos owe Dias a duty to provide lateral support to his property?
  • If so, was Petropulos liable for the damages that occurred on Dias’ house even if she was not at fault or negligent?

The SCA considered the conflicting judgments of East London Municipality v South African Railways and Harbours 1951 (4) SA 466 (E) (East London Municipality) (that held that the right to lateral support is servitudal in nature and applies only to land in its natural state, and does not extend to buildings erected and developments on that land) and the judgment of London and SA Exploration Co v Rouliot (1890-1891) 8 SC 74 (Rouliot) (where it was held that the right to lateral support is a right incidental to land ownership based on the principle that a landowner must use his property in a manner that does not cause damage to the land and buildings of another). The Rouliot decision was upheld in Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd [2006] ZASCA 118.

The SCA rejected the decision in East London Municipality and held that:

  • the duty of lateral support was not limited to land in its natural state and extended to buildings on the land.
  • Petropulos breached the duty of lateral support owed to Dias.
  • Applying the test advanced in the judgment of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431, if the extensive excavations had not been undertaken, the land would most probably not have mobilised and a clear link between the excavation and the slope failure was established.
  • Fault did not need to be established because the right of lateral support is a right that flows from ownership. Strict liability applies regardless of whether the act was negligent or intentional.
  • Dias was thus entitled to damages.

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