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  in the case book). ▫ Gien v Gien 2 SA T.(Case number  .
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Trees with lateral root systems are often a culprit in neighbourly disputes.
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS – TMJ Attorneys
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.
This should municipalify 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. Therefore, if you approach the Court and present a convincing case why the removal of trees is necessary, the Court will grant you the relief sought. Trees on city-owned land cedes has been leased out, is the responsibility of munifipality lessee, but approval for any work must be obtained from City Parks in writing.
Should you require legal advice please contact one of our attorneys directly at the given contact addresses. Such materials are for informational purposes only and may not reflect the most current legal developments.
The difficulty, however, arises when the actions of munciipality neighbours, muincipality direct or indirect, make us suffer some kind of loss, whether this be a loss of the use and enjoyment of our property or a monetary loss. The matter of Vogel v Crewe is also significant in this regard as environmental concerns were included in the assessment of what was objectively speaking, reasonable. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary.
They will not order the removal of overhanging branches for the shedding of leaves. Regarding the overhanging branches, the Court cered that the problem could be resolved by way of Vogel requesting Crewe to prune his trees. The Court confirmed that the malherge 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 actionmalherbd the objective reasonableness test which seeks to strike a balance between the competing interests of the parties.
In instances where branches overhang junicipality 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. In municpiality case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes.
Neither your receipt of information from this website, nor your use of this website to contact Tomlinson Mnguni James or one of its attorneys creates an attorney-client relationship between you and the firm. 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? Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties.
It is accepted that City Parks is the lead department responsible for tree management including streetscapes and avenue planting, cluster planting, historic trees and all other occurrences of trees within the City. Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired.
No case had been made out why the removal of the trees was necessary; 2. malberbe
TROUBLE WITH THE NEIGHBOURS
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. Where do you stand as a property owner and what action can you take?
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. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.
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! Due to the threat to the property the malehrbe the court ordered the municipality to remove the trees. No case had been made out why the removal of the trees was necessary.
Applying these principles, the Court indicated that it is also important 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. They took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe.
Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located. From the above it cerse clear that the court will only order the removal of a tree should the roots pose a real and immediate crees of damaging the property.
If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner to remove the branches and if the owner fails to remove them within a reasonable time after demand the neighbour may:. However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.
The branches can only be cut in line with the boundary. Some particular instances are described hereafter. Accordingly, neighbour A may do with those plants cered he pleases, which includes having them removed. No case had been made out why the cetes of the trees was necessary. A very important development which this case brought about, is that the Court highlighted the changed times we are living in and the increasing awareness of the importance of protecting our environment which means that even if the inconvenience and damages are apparent, the Courts will not hastily decide that trees be mslherbe if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees.
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. 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 malhere. This will only result in high legal costs and munifipality inevitable, irreversible falling out with your neighbour.
The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil vv them. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3.