Pillay v Moonsamy: Encroachment and Removal of a Roof

This article examines the case of Pillay and Another v Moonsamy and Another heard in the Kwazulu-Natal High Court, Durban.

Introduction to Encroachment Law

Encroachment in property law occurs when one property owner builds or extends a structure onto an adjacent property without permission. This can lead to disputes as it interferes with the neighbouring owner's right to fully enjoy their property. Courts have the discretion to order the removal of the encroachment or award damages, depending on factors such as the extent of the encroachment and any delay in seeking remedies. The primary aim is to balance the rights of both parties while ensuring orderly urban development.

Facts of the Case

In Pillay and Another v Moonsamy and Another, the applicants (Pillay and another) sought a court order for the removal of a portion of the respondents' (Moonsamy and another) roof that encroached onto their property. The encroachment was confirmed by a professional land surveyor, who determined that the respondents' roof extended 78cm into the applicants' property. The respondents argued that the roof, built around 2007, was constructed according to approved plans, and they should not be held responsible for the encroachment. However, the encroachment was only noticed by the applicants in 2017, after a decade without complaints.

Court's Reasoning

The court acknowledged the principle that the current owner of a property inherits both the benefits and liabilities associated with historical improvements or alterations. Despite the respondents' claim of adhering to approved plans, the court held them responsible for the encroachment. The court emphasized that the encroachment violated the applicants' property rights and constituted a deprivation under Section 25 of the Constitution, which protects against the arbitrary deprivation of property.

The court considered the primary remedy for encroachment, which is typically the removal of the encroaching structure. It weighed the disproportionality between ordering the removal of the roof versus the damage or inconvenience caused to the applicants. Since the applicants promptly sought the removal of the encroachment upon discovery and the respondents did not offer any substantial compensation or alternative resolution, the court found in favour of the applicants.

Conclusion

The court ordered the respondents to remove the encroaching portion of the roof within 60 days. It underscored that allowing the encroachment to remain would set a dangerous precedent, undermining the principles of orderly urban living and property boundary respect. The respondents were also ordered to pay the costs of the application, highlighting the legal principle that property owners must respect their neighbours’ property rights and the boundaries between properties.