LEGAL
Is perceived court leniency driving encroachment?
Bryan Hack
Recent cases reveal that an ongoing infringement remains of property rights where buildings are constructed over the boundary and onto neighboring land. Is this happening because the courts have become too lenient? Has it become worth taking the risk because a court is no longer likely to enforce the removal, meaning the demolition of the infringing structure?
In a recent case the judgment commenced with a succinct summary of the legal position as follows:“ Legally, the matter engages the principles of common-law rights of ownership and encroachment, particularly the default remedy of removal of an unlawful structure versus the court’ s equitable discretion to award compensation instead of demolition in appropriate circumstances. The present matter allows the encroachment to remain and to order the payment of compensation.”
The question arises whether this trend towards leniency will not encourage unscrupulous persons or legal entities( please note I did not say‘ developers’ who already have a bad rap) to be opportunistic and simply take the chance.
In coming to its decision, the court stressed that under common law, a landowner whose property is encroached upon by a neighbour’ s building or structure has a clear right to demand removal of the encroachment.
The court went on to say that this case reflects the traditional principle that one should not unlawfully build on, or over, someone else’ s land.
But then comes the‘ big however’: The ruling states that South African courts have also recognised that strictly enforcing removal in every case can lead to unfair or impractical outcomes. In recent decades, courts have developed a discretion to deny demolition and award compensation instead, in appropriate circumstances.
Equity, hardship and public policy
The justification by the court is that this legal approach aligns with the trend towards balancing the rights of the landowner against considerations of equity, hardship, and public policy.
Of legal significance however, is that the court stressed that rulings may only depart from the primary remedy of a demolition order in exceptional cases. This would be to avoid an unjust result, in appropriate circumstances, by awarding damages instead of demolition.
Despite this, the emphasis remains on the need to balance the interests of both parties. Only exceptional circumstances would justify deviating from the normal rule of demolition.
In other words, a court will not lightly refuse an innocent landowner’ s demand to reclaim their property. A court would need to be convinced that in the case before it, fairness strongly favours leaving the encroachment in place.
The court stated that the case law provided practical guidelines. The court will compare the harm caused to each side by either outcome. Relevant factors include: a. The extent of encroachment, minor or substantial area, the usefulness or value of the structure( is it a major building or a simple fence?). b. The cost and feasibility of removal( would demolition be disproportionately expensive or even wasteful?). c. The intent and behaviour of the parties( did the encroacher act in good faith or deliberately?). d. Did the owner protest or tacitly allow it to continue? e. Whether compensation can truly make up for the loss to the landowner, especially if the owner’ s plans are thwarted, no sum of money may substitute for the use of their own land.
46 autumn 2026 | www. tobuild. co. za