Common Types of Property Disputes
Property disputes take many forms. Identifying the exact nature of the disagreement is important because different legal principles and remedies may apply.
Boundary & Encroachment Disputes
Neighbours may disagree about the position of a boundary, wall, fence, structure or other encroachment affecting adjoining properties.
Disputes Between Co-Owners
Co-owners may disagree about occupation, expenses, improvements, management, rental, use or whether the property should be sold.
Neighbour Disputes
Disagreements may involve noise, nuisance, access, walls, trees, building work or interference with the use and enjoyment of property.
Title & Ownership Disputes
Disputes may arise regarding registered ownership, transfers, property rights, title conditions or competing claims to property.
Inherited Property
Family members may disagree about inherited property, occupation, administration, sale or how property should ultimately be dealt with.
Landlord & Tenant Disputes
Rental disputes can concern deposits, maintenance, breaches of lease, rental payments, cancellation and continued occupation.
Why the Title Deed Matters
When a dispute concerns ownership or registered rights over immovable property, the deeds records are an important starting point.
A deeds search can provide information regarding the registered owner of a property and may reveal registered conditions, servitudes, mortgage bonds and other relevant information.
Before making assumptions about who owns a property or what rights attach to it, obtain and examine the relevant deeds records and title documentation. What parties believe was agreed informally and what is legally registered may not always be the same thing.
Boundary and Encroachment Disputes
Boundary disputes commonly arise where neighbouring owners disagree about the precise position of the dividing line between their properties or where a wall, building or other structure is alleged to extend beyond the correct boundary.
These disputes should not be decided merely by looking at an existing wall or fence. The physical structure on the ground does not necessarily establish the legal boundary.
Where the actual boundary is disputed, survey information, registered diagrams and professional surveying evidence may become important in determining the correct position.
Once the factual and legal position has been established, the parties can consider whether the matter can be resolved by agreement or whether formal proceedings are required.
What Happens When Co-Owners Cannot Agree?
Co-ownership can become difficult when the parties no longer agree about how the property should be used, maintained or ultimately dealt with.
Common disputes include one co-owner occupying the property, disagreement about expenses, refusal to sell, disagreements about rental income or conflict about improvements to the property.
Who Uses the Property?
Conflict may arise where one owner occupies the property while another owner believes they are being excluded from its use.
Who Pays the Costs?
Rates, levies, bond payments, repairs and improvements can become sources of disagreement between co-owners.
What Happens to Rental?
Where the property produces income, disputes may arise regarding collection, expenses and distribution of that income.
What If One Owner Wants Out?
One owner may want to sell or end the co-ownership while another wants to retain the property.
If the parties cannot reach agreement on how to terminate their co-ownership, legal proceedings may ultimately be required to determine how the property should be divided or dealt with.
Neighbour Disputes
Living next door to someone creates an unfortunate amount of opportunity for disagreement. Property disputes between neighbours can concern far more than the position of a boundary.
Noise & Interference
Persistent noise or other interference with the use and enjoyment of property can lead to disputes.
Access & Servitudes
Parties may disagree about rights of access or the existence, extent or exercise of a registered right.
Walls & Building Work
Construction, alterations and structures close to a property boundary can result in conflict between adjoining owners.
Use of Property
The manner in which neighbouring property is used may become contentious where it materially affects another owner's property rights.
Landlord and Tenant Property Disputes
Not every property dispute concerns ownership. Many arise from the contractual relationship between a landlord and tenant.
These disputes may concern rental payments, deposits, maintenance responsibilities, damage to the property, breach of the lease or cancellation of the agreement.
Where the parties have a written lease, its terms are an important starting point. The agreement should be reviewed together with the applicable legislation before either party takes significant action.
Legal Options for Resolving Property Disputes
Court proceedings are not the only way to resolve a property dispute. The appropriate approach depends on the nature of the dispute, the relationship between the parties and whether an urgent or binding remedy is required.
Negotiation
Direct negotiation may resolve the dispute where the parties are able to identify the issue and reach a practical compromise without formal proceedings.
Mediation
A neutral mediator can assist the parties to identify the issues, explore possible compromises and attempt to reach an agreed solution without asking a court to determine the dispute.
Arbitration
Where the parties have agreed to arbitration or subsequently agree to refer the dispute to an arbitrator, the matter can be determined privately outside the ordinary court process.
Litigation
Where agreement cannot be reached or a binding court remedy is necessary, proceedings may be instituted in the appropriate court.
What Should You Do When a Property Dispute Arises?
Property disputes can escalate quickly, particularly where the parties are neighbours or family members who continue to have regular contact with one another.
Before taking drastic action, gather the information needed to establish the legal and factual position.
Identify the Property and Parties
Confirm the correct property description and the identities of the registered owners and other relevant parties.
Gather the Documents
Preserve title deeds, sale agreements, leases, correspondence, photographs, plans and any other documents relevant to the dispute.
Establish the Registered Position
Where ownership, servitudes or registered rights are disputed, obtain the relevant deeds information and supporting documentation.
Record the Problem
Keep photographs, messages, notices and a written chronology of relevant events, particularly where the dispute involves an encroachment, nuisance or ongoing conduct.
Consider the Appropriate Remedy
Once the rights and evidence are understood, the parties can consider negotiation, mediation, formal demand or court proceedings.
Avoid Taking Matters Into Your Own Hands
Property disputes can become particularly heated because the disputed conduct is often happening at someone's home or on property they own.
That frustration does not mean that a party should demolish a structure, remove another person's property, block access or take other unilateral steps without first understanding the legal position.
Taking unilateral action without legal justification can expose a party to urgent proceedings, restoration orders, damages or additional litigation. Establish your rights before attempting to enforce them yourself.
Why Legal Guidance Matters
Property disputes often involve several overlapping areas of law. The relevant issues may include registered ownership, contractual rights, servitudes, lease terms, co-ownership, land-use rules or common-law property principles.
The correct remedy therefore depends on much more than who believes they are being treated unfairly.
Assess Property Rights
Legal advice can help establish the registered and contractual rights of the parties.
Review Agreements
Sale agreements, leases, title conditions and other documents may materially affect the dispute.
Negotiate a Solution
Where possible, a structured settlement may resolve the problem without prolonged litigation.
Protect Your Rights in Court
Where formal relief is required, the appropriate proceedings can be instituted or defended.
When Should You Contact an Attorney?
It is sensible to obtain legal advice where ownership is disputed, a neighbour is alleged to be encroaching on your property, co-owners cannot agree, access is being obstructed, a significant lease dispute has arisen or litigation has been threatened.
Early advice can also be valuable where the dispute appears capable of settlement, because the legal position can first be clarified before negotiations take place.
Property disputes often become more expensive once parties have taken irreversible steps. Establishing the legal position early can preserve more options for resolving the matter.
The Bottom Line
Property disputes can affect valuable assets, ongoing business interests and relationships between people who may continue to live or work alongside one another long after the dispute has ended.
The best starting point is to establish the legal rights of the parties, gather the relevant documents and evidence, and then choose the dispute-resolution process suited to the particular problem.
Whether the dispute concerns a boundary, co-owned property, a neighbour, a lease or ownership itself, the appropriate strategy should focus on protecting your rights while resolving the underlying problem as effectively as possible.
Property & Ownership Disputes
Danel Campbell Attorneys assists with property disputes, including co-ownership disagreements, neighbour disputes, contractual property disputes, landlord and tenant matters and related civil litigation.
Explore General Litigation Services →This article provides general information regarding property disputes in South Africa and does not constitute legal advice. Property disputes can involve different legislation, contractual rights and common-law principles depending on the nature of the property and the rights in dispute. Advice should be obtained on the specific circumstances of each matter.