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My neighbor has encroached my vacant land by 150m2.Neighbour

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and HOA were aware of...
My neighbor has encroached my vacant land by 150m2.Neighbour and HOA were aware of the encroachment but never make me aware when I submitted plans for approval to both HOA and neighbor.I only knew about this when l I appointed a land surveyor.My land was 788m2 and now is 630m2 left.Neighbour doesn't want to demolish building on my land and want me to sell the property at a market price.My plans for the house no longer fit in the actual site .I have to redo the plan and I think I need to be compensated for the damages or else neighbor demolish .My understanding is that I have never seen any encroachment of 150m2 which I believe it was not an error but done intentional
Submitted: 2 years ago.Category: South Africa Law
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Answered in 22 minutes by:
9/3/2015
Lawyer: WCLawyer, Attorney replied 2 years ago
WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15,603
Experience: L.LB (UOVS)
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Good Afternoon

An encroachment of 150 square meters certainly sounds like it was done intentionally. It is unlikely that any of the people involved in the construction of the property would not have picked up on the fact that the building is not within the confines of the erf. There may be other things that point to an intentional encroachment as well that I am not currently aware of.

I would assume that the HOA would have people tasked to make sure that the owner and the builder comply and ensure that the building is in the correct position. IF there is something to that effect in the constitution or other documentation of the HOA, then you would hold a claim against the HOA as well.

If the person or entity you bought from knew of the encroachment but failed to inform you, then you might have a claim against the previous owner as well.

Your remedies at the moment is as follows:

(a) You can either strike a deal with the owner of the encroaching erf whereby he will buy the 150 square meter from you and it can be formally added to your erf.

(b) You can take the owner of the encroaching erf to the High Court and apply that he demolish the part of the building that is encroaching. If, on a preponderance of probabilities, it is established that he did this on purpose, the court will most certainly grant your application/action.

(c) You can accept the situation and sue the previous owner or the HOA or both for your damages that is caused by the fact that you property is in fact 150 square meters smaller than what you thought you bought.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.

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Customer reply replied 2 years ago
Dear Sir/MadamThank you very much for the response.Kindly advise on the following
1.Who can advise about the cost of damages and property price within Kyalami area in Johannesburg
2.If the neighbor doesn't accept my offer what is the next step
3.what is the role of HOA since we pay levies and also pay the architectural committee
4.Since the neighbor has encroached 150m2 of my land and 150m2 of the other neighbor what can both neighbours do collectively.
5.Previous seller responsibility in terms of notifying me about the encroachment .Must I notify him and the bank since the site was under administration for non -payment of the loan
Lawyer: WCLawyer, Attorney replied 2 years ago

1. I cannot make specific referrals in that area. You can approach a professional valuer or an estate agent to assist you in that regard.

2. Court, unfortunately. I would recommend that you use an attorney with a specialty in property law.

3. In this particular instance, the HOA would have no role to play, other than that of a Defendant if they failed to take certain steps that would have enabled them to pick up on this issue. They cannot make a ruling or anything to that effect, that the property must be deconstructed. Even they would have to go to court to enforce such a ruling.

4. Nothing collectively, unless you specifically agree with the other owner. It may be a good idea to do so, because then legal costs could potentially be shared between the two of you.

5. If he knew about it, he most certainly had a responsibility to bring it under your attention. The burden of proof is, however, on you to prove that he knew of it. If you are going to claim a reduction of the purchase price from him, then yes, you would have to inform him about your intention. Preferably, do that through an attorney. The Bank is not a party here, though. No need to notify them.

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Customer reply replied 2 years ago
Who pay for legal cost in answer to question 2
Lawyer: WCLawyer, Attorney replied 2 years ago

The loser in the action, normally.

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