TROUBLE IN PARADISE
We don’t live in isolation on an island – the days of Robinson Crusoe are gone forever. And the closer we live to our neighbours, the likelier it becomes that my neighbours’ actions may get under my collar.
The question arises: “How much is a neighbour expected to endure before he or she can take action? And what recourse is available to an aggrieved neighbour?”
Because we deal with different cultures, different areas and different persons, there is no clear law. We have to rely on that familiar, but fuzzy principle of reasonableness. Let’s look at a few examples.
If a neighbourhood consists of mainly older people and has a hospital or old age home or two in the vicinity, a pub, restaurant staying open into the wee hours of the morning or even a preschool with children’s laughter and shrieks of joy might be perceived as a nuisance to the inhabitants of the area. If any of these establishments were situated closer to a city centre with mainly businesses, no complaints would be expected.
If a church or mosque is built close to a residential estate, especially if peace and tranquillity was a selling point of the development, tolling church bells or prayers at the early hours of the morning might also be perceived as a nuisance.
Even more difficult is the case where a business that has been in operation for a considerable period. Due to changes in their operating hours or through introduction of new machinery or processes, their noise profile changed. These noises are perceived as a disturbance in the nearby living areas. The noise from a manufacturing business sounds very different during the early hours of the morning than later during the day!
So when is an intrusion exceeding the boundaries of reasonableness?
The South African case law has ample examples of aggrieved neighbours who sought relief from the courts, where the aggrieved parties could not settle their differences amicably. In these court cases it was confirmed that, although the right of ownership or entitlement to occupy a property includes the elements of enjoyment and full use of the property, this is not an absolute right and the right is limited by the rights of other property owners in the vicinity. The court also acknowledged the principle that neighbours have reciprocal rights and obligations to use their land in a reasonable manner, so as not to infringe upon a neighbouring owner’s entitlements of use and enjoyment that flows from their land ownership.
Neighbour law is a coin with two sides – there rests a reciprocal obligation on neighbouring landowners and land users to tolerate a reasonable level of interference that emanates from the reasonable and lawful use of neighbouring properties and that interferences may exceed this level of reasonableness if it exceeds a level of what neighbours are reasonably expected to tolerate. [1]
To provide us with an answer on reasonableness, we must take a number of factors into account: the immediate land uses or property zoning, the proximity of the properties, how densely populated the area is, the prevalent culture of the people staying in the area or the customary and religious attributes of the area.
As is usually the case, there is no clear answer. A lot of factors must be taken into account. There definitely is a matter of give and take.
Recourse lies in good neighbour relations, rules of a homeowners’ association or body corporate and, if all else fails, legal relief. Whatever your choice, remember: the neighbours will be there tomorrow and often for years to come, and everybody wants to enjoy their property rights. If you want to have a good neighbour, be one first.
[1] Van der Walt AJ The Law of Neighbours (Juta Cape Town 2010)
