Boundary Walls in Community Schemes
By Marina Constas, BBM Attorneys
Typically, not much notice is paid by a prospective purchaser in a Community Scheme to the innocuous looking boundary wall surrounding his unit or free- standing home. There are way more exciting viewing delights, such as bathrooms, kitchens and sunken lounges. And yet, the humble boundary wall could land up costing the most money in repairs, maintenance and possible litigation claims.
It is well worthwhile to observe the wall or fence with a great deal more circumspection. Understanding the neighbour law around these types of property boundaries would also pave the way for easier negotiations going forward in the event of a dispute.
When a residential scheme is zoned, the properties are pegged by a Land Surveyor who then assumes that the builder will build according to plan. In terms of the National Building Regulations, should a wall be less than 1.8 metres high, it is considered a “minor building work.” If the wall is higher, it would be imperative to submit plans to the local authority to be signed off by a Structural Engineer. The National Building Council has set a minimum for a wall to be at 1.5 metres, and the maximum at 2.4 metres. Any deviation from this, would have to receive permission in writing from the local Council. Bear in mind that Councils may have different regulations in place, so it would be best to check up on the by-laws related to your specific area.
Boundary Walls in Community Schemes
Unnecessary dispute based on shaky facts
It would have behoved Fergus McCorquondale to have begun his investigation with the National and Municipal Building regulations as well as Sectional Title legislation before launching a tirade of correspondence against his neighbour, Salomie Singh. The wall between them in a Sectional Title complex in Springs had been crumbling for quite some time. Fergus insisted that the wall was in fact not on the exact boundary line, and should therefore be maintained by Salomie.
He had in fact placed this in writing in a very stern and clear manner to Salomie, telling her that the previous owner of his property had explained this to him and that Salomie was“ aff her heid”, and “a wee scunner” if she thought that he would have anything to do with payment for the rehabilitation of the wall. In this particular complex, the boundary walls where actually situated on common property, so it was the Body Corporate who would have to bear responsibility. At the next AGM, Fergus mumbled “Ah dinnae know” which was akin to an apology directed at a bemused Salomie, who had been a Trustee at various other schemes on the East Rand, and who was Sectional Title savvy.
What about Exclusive Use areas?
Let’s pretend for the moment that the property through which the wall described above traversed, was Exclusive Use area. The Body Corporate in this instance would have to make payment of the repairs and maintenance, but would be able to recover the costs from the Exclusive Use Owners on either side of the wall. Ownership by way of a registered or rule created exclusive use area confers the responsibility on the owner of the Exclusive use right to maintain and repair the area. In the absence of proof that a boundary wall is wholly on one or the other property, ownership, and the concomitant costs are presumed to be shared.
What if the complex is an HOA?
If our Springs Complex was a homeowners’ association, then the boundary wall would be defined as a wall erected on the physical boundary between two properties so that they stand on or occupy space at least partially on both properties. Both neighbours are obliged to contribute to reasonable and necessary costs of repair and maintenance of the wall.
In academic circles, there are two schools of thought on the topic of freehold boundary wall ownership. The one is that each owner owns a portion of the wall together with the reciprocal duty of lateral support, the other is that there is joint ownership of the wall. It matters not which one is correct, as the rule of thumb in the thread of Court cases on point seem to indicate a propensity for costs orders in respect of repair and maintenance being shared between neighbours, even where it has been shown that the wall is situated on one side of the property, more than on the other. Obviously if there are encroachment issues, same can be taken to Court, and an order for demolition or compensation may be requested.
What about raising boundary walls?
It is also noteworthy to point out that neighbours may not raise the boundary wall or lower it without the consent of the neighbour or Body Corporate, as the case may be. Nor may they do anything which may affect or compromise the overall stability of the wall, structural integrity of the scheme, or aesthetic value of any property.
If by chance, you do find yourself in a dispute with your neighbour due to boundary wall issues, perhaps take heed of Abraham Lincoln, who said: “Discourage litigation. Persuade your neighbours to compromise wherever you can.”