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My neighbors have an old Syringa tree growing within 2m of…

Customer Question
Hi. My neighbors have an...
Hi. My neighbors have an old Syringa tree growing within 2m of our boundary wall. The berries have been falling on our side. I've had 2 small dogs poisoned this year (in March and in July). We performed a postmortem on the second dog and the results said it was highly likely that Syringa berries caused the death. I then asked the neighbors to cut down their tree, as we have other dogs now. They refused but let me cut the overhanging branches. 2 months later I cut back branches again as the berries were still falling on our side (wind etc), both times we paid all costs. This was in September. The tree has grown again and I keep finding berries on our side. I've heard that the law states that if the tree is within 2 m from our boundary wall I have the right to ask them to cut it down and we share the cost. I can't live like this with constant fear for my dogs (I also have 3 young children). Is this true and how do I go about it?
Submitted: 2 years ago.Category: South Africa Law
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Answered in 6 hours by:
1/24/2016
Lawyer: Shaie Zindel, Attorney replied 2 years ago
Shaie Zindel
Shaie Zindel, Attorney
Category: South Africa Law
Satisfied Customers: 1,249
Experience: All areas of commercial and contract Law - specialist in property advice.
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Good Day - thank you for your question. I will try to assist you.

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Customer reply replied 2 years ago
Thanks Shaie,
Just in case you need more information on location we are in Germiston.
Lawyer: Shaie Zindel, Attorney replied 2 years ago

no problem! I think I understand the problem! Are we sure about the cause of death?

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Lawyer: Shaie Zindel, Attorney replied 2 years ago

Hi Again - if you can get some literature together to prove that the syringa tree is a danger to pets and children then I believe you would be entitled to an order directing the Neighbour to remove the tree or ensure that no berries drop into your property. My advice is to get an attorney to address a demand to the Neighbour. If they refuse to remove the tree then you will be entitled to apply to Court for an order to remove the tree.

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Customer reply replied 2 years ago
What about the law that I heard about which states that if the tree is within 2 m from our boundary wall then I have the legal right to ask for them to cut it down? In the long term it could cause damage to the wall?
Lawyer: Shaie Zindel, Attorney replied 2 years ago

Hi - there is no such law that I am aware of - you may be referring to a 2003 Judgment of Vogel v Crewe which has been summarised as follows:

Vogel vs. Crewe and another (2003(4) SA 509(T) - Vogel believed that Crewe’s trees - which were growing within two metres of the boundary - were causing various problems on his (Vogel’s) property: the leaves were blocking his gutters and swimming pool, the trees were affecting his sewage system and damaging his parking area, and they were also damaging the concrete wall between the properties.

“Based on a test of objective reasonableness - which included considering the trouble the trees were causing for the neighbour versus the benefits of protecting them for the visual pleasure they provide, for their shade, and even for the oxygen they produce - the judge found that Crewe couldn’t be forced to remove the trees,” said Cor.

He said, too, that the case was significant for a number of reasons: it took the environment into consideration (“And given the problems of climate change, everyone ought to think twice before cutting down a tree”); and it addressed the question of what is and isn’t reasonable.

“The judge made it clear that you have to make allowances for the fact that properties are getting smaller - and in Vogel and Crewe’s case, the pleasure that the tree provided would therefore necessarily require a certain amount of effort and tolerance,” said Cor.

“Damage of the kind that Vogel was claiming can be prevented by normal maintenance - by cleaning the gutters on a regular basis, for example.”

Ill look for other case law but I'm not aware of a more recent judgment compelling the removal of trees within 2 metres of a boundary wall or fence?

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