There are two schools of thought in South Africa on the subject of boundary or common walls.
The first follows the notion of co-ownership. This ideology runs on the basis of two neighbouring owners being co-owners of the common wall and jointly liable for the maintenance of the wall. Decisions regarding the common wall are to be made jointly and with each neighbouring owner’s consent. Acts that affect the common wall or fence can be carried out only with the consent of both neighbours and usually the help of a property lawyer. According to this school of thought, a common wall may not be demolished without the consent of the other owner, except where one neighbour replaces an inferior partition with one of a more durable quality at his own expense or in an emergency.
The second school of thought holds the belief that one half of the common wall, up to the median line, belongs to each of the neighbouring owners and each owner thus has an implied servitude of lateral support against the neighbouring owner. This notion is based on the premise that the common wall does not stand on jointly owned land but rather on two separately owned individual pieces of land.
The majority of South African academics are of the opinion that a common wall located on the boundary of two properties is deemed to form part of both properties and the notion of co-ownership therefore applies. This notion can, however, be disregarded on submission of evidence to the contrary in which case the courts are likely to follow the reasoning provided by the second school of thought and apportion the rights to the common wall between the neighbouring owners.
You may be considering alterations to your boundary wall which will affect your neighbour and whether the alterations are a necessity or for aesthetic purposes, your first step would be to speak to your neighbour.
For further guidance in this regard, please contact our professionals on 041 363 6044 or info@kaplans.co.za for sound legal advice.
