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CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1593
Experience:  BCom; LLB; Masters in Law
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Madam Please could you assist me. I live in a complex in the

Customer Question

Dear Sir/Madam
Please could you assist me. I live in a complex in the Kloof area outside Durban where we live in a sectional title unit. We have some of the common property in front of our property as we border on a little gorge. We have been taking care of this land in the sense of trimming bush, etc. but we do have a small fence running along the edge of what we presume is our property (there are no pegs demarcating our piece of property). There is now a dispute with the body corporate as we wish to put up a short fence on the common property from our property to block off a pathway running along the front of our property (in the common property area) in order to form a boundary to stop thieves getting access (we have had one attempted break in via this route on our property). We have been denied this opportunity by the body corporate as they say that they need access to all common property. We have looked for pegs to identify the borders of our actual property and can't find any. What do you suggest that we do? Should we ask for the body corporate to inform us where the pegs are? Do we try to work with them to find a solution that we could all be happy with? I even thought of a fence with a gate and they could all have a key. My husband says that they need to tell us where the pegs are before we go any further. I really don't want to cause a dispute in the complex and with the neighbours but at the same time, I believe that I also in a sense own a proportion of the common property so surely what I say also has value. What do you suggest?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  CaseLaw replied 1 year ago.
Hi there, This is a further information request so that I can provide you a proper answer to your legal question. Please continue in this same question thread.Can you please extend the timer to give me a few minutes to consider your question?Awaiting your further information.RegardsCaseLaw
Expert:  CaseLaw replied 1 year ago.
You need to ensure that any wall / fence that you put up is on the border of your property, and not on common property. One way to do this is to call in a surveyor who can look at your property diagrams and can measure out the exact position of the pegs, and will then mark the pegs. That's probably the easiest way to go about it. I doubt that anyone on the body corporate has the skills to do that - and it also would not be a guarantee that they tell you the right thing.There is no way that you can claim ownership of the common property. At best, ***** ***** ask the body corporate to register an exclusive use over that piece of the common property, but then the body corporate members would need to vote and pass a resolution - and there might be some money you need to pay. Your only two options are: (i) leave it the way it is, without the fence, and you can then enjoy "your" bigger garden, or (ii) put up a wall on your border and be legal, but enjoy a smaller garden.If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer! Good luck and best regards,CaseLaw
Customer: replied 1 year ago.
If it is not clear where the boundary is as there are no pegs, whose responsibility is to to organise a surveyor? In the meantime, as there are no clear demarcated boundary lines, we don't know where the common property starts and ends. What will happen if we put up a 5 m fence in the meantime to give us (and our neighbours) better security? We are prepared to take necessary legal and just action as we cannot see any reason to prevent this fence from being put up. Noone in the complex actually uses this common ground (wherever it starts and ends) and we are the people who maintain it.
Expert:  CaseLaw replied 1 year ago.
If it is not clear where the boundary is as there are no pegs, whose responsibility is to to organise a surveyor? --> Yours unfortunately, as you are the one who wants to construct a wall, and whose responsibility it is to construct the wall/fence on the right border.The surveyor can move quite quickly, and could give you a report within a day or two.
Expert:  CaseLaw replied 1 year ago.
Hi there again,I see that you've read my answer and I hope that you understood the answer and that it was useful? If you have a further question please ask it, or if you need clarity on the answer please let me know.If you're happy that I've answered your question, please leave positive feedback for me.RegardsCaseLaw