Your neighbour’s building activities, conducted in terms of approved plans, causes subsidence on your property and damage to your home. Is there a legal duty on landowners to provide lateral support in built-up urban areas? Must negligence be proved?
For a number of years there has been a lack of clarity in our law in relation to the scope of the duty of lateral support as a result of two divergent views which has manifested in our courts arising out of the importation of the doctrine of a legal duty of lateral support from English law. The underlying issue was whether or not that duty of lateral support existed in respect of both unimproved land as well as land in urban environment with improvements (such as structures and buildings) on the neighbouring land.
Those issues have now been resolved by the Supreme Court of Appeal in the recent decision in the matter of Petropulos & Another v Dias (Case no 1055/2018) [2020] ZASCA 53 (21 May 2020) in which our offices acted for the successful party. The Court stated that:
“It remains to sum up the position of our law on the right of lateral support owed between contiguous properties. First, it is a natural right incidental to the ownership of the property and not servitudal in nature, as enunciated in Rouliot. Second, it is a principle of neighbour law as explained in Anglo Operations, which rests on justice and fairness, as articulated in Regal. Lastly, it is owed to land not only in its natural state, but extends to buildings upon it. Although influential in the acceptance of the right of lateral support into our law, English law was not slavishly implanted into our law. “
As such, it is now settled law that the duty of lateral support exists in an urban environment, extends to buildings on contiguous pieces of land provided that in the circumstances the harm is too remote from the conduct or whether, it is fair, reasonable and just that the person who caused the damage be burdened with liability.
