My neighbour has a massive jacaranda tree in his property, that has and is causing a huge mess to my property. Also gutters need replacing every few months due to blockage of the leaves, my roof need to be cleaned almost every 2 weeks costing me a great deal of money.I have several times offered to share costs in cutting the overlapping branches, he just turns a deaf ear, I need a specialist lawyer to attend to my case, I currently have a buyer for the property, but the purchase condition is that get him to cut the overlapping branches, please help!! Regards Sam
Offered to share costs of cutting the overlapping branches.
Good day. This is an info request to assist you better. Please continue on this thread.Do I understand you correctly. It is only the branches that is hanging on your side of the fence that is causing the problem?
yes, correct. The tree is very huge, so all the leaves and debris fall into my property
You don't need his permission to cut the branches that overhangs on your property. You merely have to give him an opportunity to remove it himself and, if he refuse, you can get someone to do it and recover the reasonable costs of removing the branches from him.What I suggest you do is to get a quote for the removal of the branches. Then, give him notice that, if he does not cut down the branches within, say, seven days, you will employ someone to do it and recover the costs of cutting it from him. Attach the invoice of the contractor you chose. Note that the contractor may only cut off those branches that encroach. Chances are that this will come in under R 12 000 and I suggest you then approach the Small Claims Court to recover your costs. This is the cheapest and quickest way to collect a sum of under R 12 000. Nobody is allowed to use lawyers and the whole process will cost you about R 100.
The Small Claims Court is usually located at your local Magistrates Court and you should ask to speak to the Clerk of the Small Claims Court. They will assist you in issuing a letter of demand and then later a summons.
You will have to represent yourself on a date that will be given to you by the Clerk of the Court, however, this is normally after hours, which means that you do not need to take off work.
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I have done a lot of reseach on the by-laws of Jhb, regarding this issue, he can be forced to remove and cut the branches at his own cost, the problem I have is that, what channel do I use to enforce this.
Regardless of the bylaws, the South African Common law state that he must cut it down and remove it at his own cost. If it is in the bylaws, your first port of call would be the Municipality. If they are toothless, then your only other recourse would be an interdict at High Court and, to be honest, it will probably be cheaper and faster (should the Municipality not do their part) to get someone to cut the branches and claim through the Small Claims Court. But, the option of an interdict is available to you, should wish to do so.
what route do I take for an interdict, and knowing that is at fault claim all the legal costs from him?
If you want him to remove it, then you would have to obtain an interdict from the High Court and you would have to employ an Attorney and possibly also an advocate to assist you with this.Normally, the successful party will be awarded costs, but it is not going to be all your legal costs. It will be a large portion thereof; I would estimate about two thirds of your total legal costs and probably the full fee of your advocate.Note that this is in the discretion of the court and not a guarantee, but, normally, this is how it works.
L.LB, Civil and criminal litigation, contracts, labour and family law
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