MALHERBE V CERES MUNICIPALITY PDF

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 [8] in the case book). ▫ Gien v Gien 2 SA T.(Case number [5] .

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Trees on city-owned land that has been leased out, is the responsibility of the lessee, but approval for any work must be obtained from City Parks in writing. No liability ceress be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.

If branches encroach kunicipality 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:. In Vogel v Crewe and Another 4 SA T where the applicant and respondents were neighbours whose properties were situated adjacent to each other.

They will not order the removal of overhanging branches for the shedding of leaves. Trees with lateral root systems are often a culprit in neighbourly disputes. 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? Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located. The branches ecres only be cut in line with the boundary.

This article is a makherbe information sheet and should not be used or relied on as legal or other professional advice.

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.

Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems.

The difficulty, however, arises when the actions of our neighbours, whether 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.

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The Court confirmed that the test 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 actionis the objective reasonableness test which seeks to strike a balance between the competing interests of the parties. 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. No drastic action, like removing the tree, was necessary and Crewe failed in his application.

The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees.

Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves in the swimming pools and surrounding areas and also damage fixed structures.

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. Regarding the overhanging branches, the Court found that the problem could be resolved by way of Vogel requesting Crewe to prune his trees. Always contact your legal adviser for specific and detailed advice.

Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers. Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. Based on the evidence before it, the Court dismissed the application as: These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging the concrete wall and his parking area.

From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property.

If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. 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 removed if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees.

TROUBLE WITH THE NEIGHBOURS

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.

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Good fences make good neighbours, so the adage cerew. Clearly a conflict between these two rights is possible and when courts are presented with such disputes, malhrbe balance of the interests of the two parties is considered. However, do not go rushing headlong into litigation if there are other malyerbe drastic measures which could be taken to deal with the problem. 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.

Where do you stand as a property owner and what action can you take? 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. 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 cerew of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.

If Crewe should refuse, Vogel will then municipalitt entitled to cut off the overhanging branches, in line with the boundary. In terms of our private nuisance law, every ecres owner has a right to unimpeded enjoyment of his land. When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago! This should not be seen as an encouragement to neighbours to take the law into their own hands as our law does xeres 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.

ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS – TMJ Attorneys

This website contains general information about legal issues and developments in law. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil munnicipality them. Due to the threat to the property the house the court ordered the municipality to remove the trees.