Disputes surrounding boundary walls in residential and commercial areas are one of the most controversial topics facing homeowners, highlighted Roy Bregman, director at Bregman Moodley Attorneys Inc.
He mentioned that the disputes relate to the location of the boundary between the two properties, or when trees or plants encroach on or overhang the other property, or when the wall (or work done on it) causes a nuisance or a threat to the neighbouring land, or when the wall diverts the natural flow of water or obstructs the neighbour’s view or access to light.
A boundary wall is generally defined as ‘any wall erected on, above or over the physical boundary between two properties, so that they stand on or occupy space at least partially on both properties’.
Bregman advised that if you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. This includes the foundations which, of course, will be wider and longer than the wall itself. The structure will then belong to you.
Usually, however, neighbours agree to share the costs of boundary walls, in which case ownership is also shared. In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared.
Some local authorities state that each side is then owned by the property owner on each side; others say that the wall is owned jointly. If ownership is shared, either way, neither owner may do anything to the wall – i.e. they may not raise it, lower it or break it down – without the other neighbour’s permission.
If the structure is damaged in any way, both must share the cost of repair. Both neighbours are obliged to contribute to reasonable and necessary costs of repairs or maintenance of the wall.
If the wall is damaged by natural forces such as wind or fire, either neighbour can repair or restore it, and the other party is obliged to make a reasonable contribution to the cost of repairs or replacement of damaged or destroyed party walls if it benefits him/her as well.
They won’t have to contribute if the neighbour decides to replace the existing wall with a better or more expensive one. Obviously, one neighbour cannot do anything that may affect or compromise the overall stability of the wall.
Municipalities require that:
- Solid boundary walls may not be any higher than 1.8 meters on street boundaries, and no higher than 2.1 meters on lateral boundaries.
- Palisade-type fences may not be higher than 2.1 metres on either street or lateral boundaries.
- Fences may not be higher than 2.1 meters on street boundaries.