A garage built 42cm into the boundary of a neighbour’s property is the subject of a legal spat between the two neighbours, with the aggrieved neighbour asking the court for an order that the offending garage be demolished.
Mogadi Sesoene turned to the Limpopo High Court, sitting in Polokwane, as she is not willing to tolerate the portion of Nape Masogo and his wife’s garage infringing on her property.
The fight has been going on for more than a decade.
The Masogos had been in occupation of their home when the applicant (Sesoene) bought her property and moved in.
Sesoene told the court that during 2012, the Masogos had erected an immovable structure that was used as a garage. She had obtained the services of a land surveyor to determine if the structure was encroaching her property.
She had also reported the situation to the Polokwane Municipality after she had been unable to resolve the issue with her neighbours.
The municipality had served the respondents with a final notice in which they had been informed that the structure and its foundation exceeded the boundary line, in contravention of the National Building Regulations and Building Standards Act. The notice had required the respondents to demolish the portion of the structure that exceeded the boundary and remove the building material.
The notice had been ignored by the respondents and the municipality had not taken any steps to enforce the notice. The applicant had then constructed a boundary wall that obstructed access to the respondents’ garage.
Earlier, the respondents had turned to court to be given access to their garage and the applicant had immediately demolished the wall on advice of her legal representative.
He had sent a letter of demand to the attorneys of the respondents to demolish their structure. No response had been received.
The respondents, in an opposing affidavit, acknowledged that 42cm of the garage they had erected encroached on the property of the applicant. They said the cause of that had been the erection of a boundary wall by the applicant between the two properties in 2003, whereby the applicant had determined the boundary between the properties.
The respondents said that the applicant had refused to discuss the issue or accept compensation. They had tendered to purchase the land encroached on, for a market-related price, but without success as the applicant had been adamant that the structure be demolished.
The respondents said they would suffer more prejudice and inconvenience than the applicant if a demolition order was granted.
In reply, the applicant stated that when she had moved into her property, the respondents had indicated to her where the boundary was between the properties. She had erected the boundary wall there on the assumption that it was the true boundary line between the properties.
When she had decided to make additions to her property, she had submitted plans to the municipality. It had only then became apparent that the improvements could not be implemented because of a discrepancy between the plans and the size of her property.
She had acquired the services of a land surveyor who had established the true boundary between them. The plans submitted by the respondents to erect a garage had not been approved by the municipality, she said.
In quoting an act out of Shakespears’ play The Merchant of Venice, Judge Gerrit Muller said: “The pound of flesh, which I demand of him, Is dearly bought; ‘tis mine, and I will have it.”
He said the words provided an apt description of the purpose of the application.
The judge said there was no doubt that the garage had been erected at least six years before the discovery of its encroachment on the property of the applicant when she had wanted to erect a garage on her property.
But, the judge added, the respondents had acquired knowledge by means of the notice that the garage unlawfully encroached the property of the applicant. They had failed to engage with the municipality to rectify the unlawful encroachment.
Instead, they had ignored the notice and letter. After 10 years, the parties were no closer to a negotiated solution.
The properties of the parties were each 280m². There were, due to the size of the properties, not much room to develop or make additions to the properties. The respondents enjoyed the benefit and use of a portion of the property of the applicant, to her detriment.
She had been unable to develop her property and make additions to its fullest potential. A garage, no doubt, would enhance the use of the property and would increase its value and marketability, Judge Muller said.
The judge ordered the respondents to, within a month, demolish or partly demolish the structure that encroached on their neighbours’ property.
Pretoria News