Our panel has received an e-mail from a reader who is the victim of storm water accumulating on his property.
He lives on an incline, with neighbours above, below and next to him. Whenever there is a downpour, water from his neighbours and from his own property damn up against the boundary wall at the bottom of his property.
The reader is concerned that the wall may crack or fall over, or that his property may be flooded in the event of a serious downpour.
He wants to know whether he is allowed to remove a few bricks or drill holes in the wall to allow the water to drain and, if so, what if this causes damage to the neighbour’s property.
Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says storm water is the term that is used for excess rain water from buildings and roads. “It also includes ground and spring water.”
The basic common law principle is that an owner of a lower-lying property is obliged to receive naturally flowing water from a higher property, according to Geldenhuys.
“This principle is limited to the extent that the owner of the lower-lying property will not be obliged to accept an increased flow resulting from structures erected by the owner of the higher property.”
Geldenhuys says the Supreme Court of Appeal recently had the opportunity to consider the application of this common law principle in the context of urban properties.
“The court found that the owner of a lower-lying property may not necessarily be obliged to receive storm water from a higher property.”
The court confirmed, says Geldenhuys, that the common law principle referred to above only applies to the natural flow of water and that it may well be that there is an obligation on an owner of a higher-lying property to divert the water to the street, if reasonably possible.
In essence, says Schalk van der Merwe from Rawson Properties Helderberg, this means that if the owner of a higher-lying property wants the owner of a lower property to accept his storm water, he would have to prove that the obstructed water would have flowed onto the lower property even if there were no buildings and the ground contours were not interfered with.
“Another factor that should be considered is the provisions of the town planning scheme applicable to the property in question.”
Van der Merwe says these provisions may place an obligation on the owner of the lower-lying erf to accept and permit the passage of storm water over his erf, only in the event of it being impractical for it to be drained directly to a public street.
“Such a provision would require that, where it is practical to drain storm water onto a street, the owner must do so.”
Van der Merwe says the reader would most likely therefore not be allowed to make holes in the wall or demand that his neighbour accept the storm water, unless it is impossible or impractical for him to divert the water to the street.
“The reader may also insist that the owners above him divert the flow from their erven so that the reader’s is not burdened as is currently the case.”
Send your property related questions to coetzee[at]fullstopcom.com.
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