Lean on thy neighbour?
Any seasoned litigation lawyer has had the pleasure, or displeasure for that matter, of dealing with disputes between neighbours.
Any seasoned litigation lawyer has had the pleasure, or displeasure for that matter, of dealing with disputes between neighbours. These disputes, whether about noise, nuisance or a retaining wall collapsing, are more frequent than one would hope. It is trite that the owner of an adjoining piece of land is my neighbour and that one has duty to support her land at the border. This is known as the duty of lateral support. ‘Neighbour law’ in South Africa has its genesis in a combination of Roman and Roman-Dutch law and English law, affectionately known as our common law. Enter the dispute between Petropulos & Another v Dias (the Dias matter).
The Legal Position Prior to Dias
It has long since been held that a land owner is entitled to make excavations on her land and that she is entitled to the full use and enjoyment thereof. Such entitlement is however limited by the duty not to excavate to an extent that causes the neighbour’s land to subside. Should subsidence occur, the owner who made the excavations is liable for the damage caused to the neighbour’s land.
The legal position prior to Dias was that the duty of lateral support is applicable only to land in its natural state. In the case of East London Municipality v South African Railways and Harbours the court held that our law is the same as English law on the subject. In terms of English law, the duty is limited to land in its natural state and does not extend to buildings which are constructed thereon.
According to English law, support for buildings is only obtainable by means of a servitude. Such a servitude can be obtained by a user of a building after the elapse of a period of 20 years or by agreement. This principle is set out in Dalton v Henry Angus & Co and is best conveyed in the passage of Lord Penzance’s speech:
“[I]t is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away and allow his neighbour’s house, if supported by it, to fall in ruins to the ground.”
The court in Transvaal (at the time) relied heavily on the English law in both Douglas Colliery Ltd v Bothma and Another and East London Municipality, and consequently concluded that lateral support is owed only to land in its natural state, and not to artificial structures which were erected on it. Neser J held that there is no natural right of support for that which is artificially constructed on land. The learned judge relied on a passage in Halsbury Laws of England (Hailsham ed, vol 22 under the title Mines) para 1341:
“There is no natural right of support for that which is artificially constructed on land: such a right cannot exist ex jure naturae for the thing itself did not so exist. Therefore any right to the support of such an artificial burden must in each case be acquired by grant, or by some means equivalent in law to a grant. Thus it may be acquired by express grant, or implied grant, or by prescription, or it may be created by statute.”
Brand JA (at para 17) stated the following, making reference to London and SA Exploration Co v Rouliot:
‘Equally erroneous, in my view, is the statement that De Villiers CJ decided to incorporate the English doctrine of lateral and subjacent support, with all its ramifications, into our law. On the contrary, I agree with the statement by the Court a quo (at 366B) that what had happened in Rouliot was that: “De Villiers CJ and Smith J simply introduced, as Judge-made law, a rule which they regarded as common to all civilised systems of law because, as they perceived it, a lacuna existed. The Judges did not concern themselves with the exact pedigree of the rule. . . . The rule was introduced because it was regarded as just and equitable.”’
Dias has now evolved the position. The duty to provide lateral support is no longer limited to land in its natural state as begotten in English law. The said duty now extends to constructions on the land.
Petropulos & Another v Dias (SCA)
The appeal concerns the nature, scope and ambit of the duty of lateral support owed in respect of adjoining properties. There was a settlement reached between Venter and Dias, and Venter therefore took no part in the appeal. The first appellant (Petropulos) and the respondent (Dias) and Mr Venter owned contiguous properties in Camps Bay, Cape Town, on a steep mountain slope. During the period of March 2008 to August 2008. The respondent and Mr Venter’s properties had houses built on them whilst the first appellant’s property was still an undeveloped erf. In the course of March 2008, the first appellant and Mr Venter each commenced with excavations on their individual properties, close to the boundaries of the property of Dias. Petropulos undertook excavations in preparation for building a house, whilst Mr Venter was building an additional garage. The building works on Mr Venter’s property had minimal to no effect on the land. However, the excavations on the property of Petropulos was fairly substantial, as it involved the building of three tiers as well as a lift shaft. The three levels were each secured by a retaining wall so as to make provision for lateral support.
During 2008 a major movement beneath the ground caused the entire slope, on which the Dias property is situated, to subside. The aforesaid property moved laterally and downwards towards the excavation on the Petropulos property, which resulted in extensive structural damage. Mr Venter’s property was also affected, his property subsided which lead to him abandoning his property due to safety concerns. Dias alleged that the damage to his property was caused by the excavations undertaken by Petropulos and Venter on their respective properties. As a result, the respondent instituted a claim for damages against both parties for breach of the duty to provide lateral support.
The Court a quo delivered its judgment and held that the duty of lateral support extends to buildings constructed on the land, provided that such land has not been ‘unreasonably loaded so as to place a disproportionate or unreasonable burden’. The court held further that Dias had not forfeited his right to lateral support by unreasonably loading his land and that the respondent’s property subsided as a result of the excavations undertaken on their respective properties. The excavations breached the duty of lateral support and Petropulos and Venter owed the respondent a duty to provide lateral support to his property.
On appeal the judgement of the Court a quo was attacked on four grounds. Firstly, no duty of lateral support was owed by Petropulos to the Dias property because of the fact that the latter’s property was no longer in its natural state. Secondly, that the excavations on the Petropulos property did not breach the duty to provide lateral support. Thirdly, that the excavation on the Petropulos property was not sufficiently closely connected to the damages suffered by the respondent for legal liability to follow. Lastly, that based on the facts of this case, it is implausible that Petropulos should be held liable in the absence of fault.
The SCA decided as follows:
Firstly, the court examined the Petropulos argument based on English law that the duty of lateral support is owed only to land in its natural state. The court scrutinised the development of our Neighbour Law and came to the conclusion that the duty of lateral support is reciprocal between neighbours. The right is incidental to the ownership of property and is not servitudal in nature. In our Neighbour Law, fairness and equity are essential considerations, as well as the constitutional value of ‘Ubuntu’ which must be considered. It upheld the Court a quo’s decision that the duty of lateral support extends to buildings constructed on the land.
The court however rejected the Court a quo’s exception (where the duty of lateral support will not extend to buildings). The exception arises in situations where such land has been unreasonably loaded as to place an unreasonable burden on the neighbouring land. The court stated that such an exception poses an unreasonable obligation on land owners who have complied with building and town planning regulations, as they would now bear the onus of proving that the construction is not unreasonable or disproportionate.
Secondly, based on the expert evidence of two geo-technical experts, the court followed that the respondent had succeeded in establishing that it was due to breach of the duty to provide lateral support, that the slope subsided. The court stated that even though the slope instability was a contributory factor, it would be incorrect for the court to deny that the destabilisation of the Dias property was not affected by the Petropulos’ excavation. As such, the appellant had breached their duty to provide lateral support to the respondent’s property.
Thirdly, the court looked at the element of causation to establish the presence of both factual and legal causation. The court applied the causa sine qua non (the “but for” test), in order to find factual causation. The court found it difficult not to accept the second expert’s opinion that there was a clear link between the excavation and the slope failure. There must be a logical explanation that the Dias property mobilised shortly after the excavation, after being unaffected for 16 years. With reference to legal causation, the question which arises is whether the loss is too remote. The court answered this question in favour of Dias.
Lastly, it is now settled that liability in subsidence cases is strict. In D&D Deliveries (Pty) Ltd v Pinetown Borough it was explained that:
“In subsidence cases it is unnecessary to prove an unlawful act or negligence; the cause of action is simply damage following upon deprivation of lateral support. The action lies only against the owner of the adjoining property, and each successive subsidence gives rise to a fresh cause of action”.
The court therefore dismissed the appeal with costs.
This judgment clarifies that our ownership rights to property are not absolute. Property owners owe their neighbours a reciprocal duty to provide lateral support, even if the land has been improved and has been built up. The issue was in our opinion not novel. See Trust Company Limited v Victoria Building Company Limited and Phillips v South African Independent Order of Mechanics and Fidelity Benefit Lodge and Brice.
The principle that the duty of lateral support goes beyond mere land in its natural state, was first accepted into South African law as a principle of Neighbour Law in Rouliot. Rouliot further held such right is not a servitude. Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd affirmed Rouliot.
In our Neighbour Law, fairness and equity are significant considerations. In light of our constitutional context, the principle of lateral support must find expression in the constitutional value of Ubuntu, which ‘carries in it the ideas of humaneness, social justice and fairness’. Thou shalt now lean on thy neighbour.