If you have nice neighbours you are very lucky, however in reality some are not very pleasant and can make your life miserable at times. It is worth making the time getting to know those who live next to you, as neighbours can play an important role in our lives and our community, and it’s always a good thing to keep in mind that you are a neighbour too.
With the increasing trend to fit as many houses into developments and gated areas as possible, we are also seeing more instances of larger stands being subdivided and homes being built closer together. The problem however that arises with this is the increasing conflict that may occur between neighbours.
If you are a property owner you are entitled to the free use and enjoyment of your home. You may convert or alter your property provided that in doing so, you stay within the limits of County Government regulations and that you do not interfere with the legal rights of your neighbours.
In our modern society disputes between neighbours can arise over a number of issues. The most common disputes that arise are usually over:
Encroachment is where you have erected a structure on your property and part of the structure is on a neighbouring property. This is trespassing and the encroaching land owner is legally responsible. Structures referred to include any building, driveway, path, retaining wall, fence, trees or any other improvements.
When views are blocked by new building plans, neighbours do have some rights. In the case of over-coverage, unsightly buildings, inappropriate use of buildings and loss of views, plans can still be challenged and demolition ordered, even after the building has been erected.
Boundary walls and Fences
With boundary walls and fences, the generally accepted rule is that it is the joint property of the neighbours who are both equally liable for the walls/fences maintenance and repairs. However neither can make any changes to it without the consent of the other. Boundary encroachment is seen as the most common dispute, this can cover anything from tree trunks and branches encroaching on a neighbour’s property, roots uplifting neighbours pavement or at times walls or leaves falling into the neighbour’s pool.
If your neighbour is not prepared to do anything and you don’t want to live with overhanging branches from your neighbour’s trees, you should ask him or her to cut them away, and to remove the cuttings from your side of the fence. If he or she refuses to do this, you can cut the branches back to the property line – however you’re not allowed to keep the cuttings unless your neighbour refuses to take them.
If he or she refuses to take them you’d be within your rights to dispose of them, and to recover the costs of the disposal from the neighbour. Should none of these work, you could apply for an interdict to compel the neighbour to remove the branches.
Having to deal with noisy neighbours is a common and most popular complaint. The disturbances can range from a variety of sources including barking dogs, loud music, arguing and shouting, banging doors or drilling. Kenyan law makes a distinction between ‘Disturbing Noise’ – which is “objective and is defined as a scientifically measurable noise level,” and ‘Noise Nuisance,’ which is “a subjective measure and is defined as any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person.”
The most practical and cost effective way to deal with a noise nuisance would be to approach your neighbour directly and politely and tell them of the problem. If you are unable to reach an amicable solution, you should consider appointing a mediator to achieve resolution to the dispute or report the matter to the Environmental Management Authority. As with most legal matters it is sensible to try all avenues to resolve a matter before a court is approached. Should you have exhausted all of the above methods to no avail then you are able to take legal action.
Use of Land
Sometimes neighbours may object to the use of land by one of their neighbours or proposes to make use of the land, or the type, size or colour of a building that is to be erected on the land, usually because:
- it is, or will be out of character with, or different from the rest of the area
- it may lower land values
- the building will be too tall, block the sun, obstruct the view or, even though it is on the other side of the boundary, be too close
- the building work may damage the neighbour’s land
- it is causing, or will cause, parking problems.
In some situations, what the neighbour is doing or proposing to do is contrary to some private right of the adjoining owner. These rights usually arise by agreement (it may be an agreement between previous owners) in the form of easements and covenants which appear on the land title documents. For example, if there is an agreement between a number of land owners not to put up a certain type of fence (a restrictive covenant), one adjoining owner will have a private right against another. Similarly, there may be a private agreement (as there normally is between owners of terrace houses) to mutually support each other’s walls (a cross easement of support). There may be an agreement which ensures open access to light and air, or which prevents building on a certain part of a block of land.
If these types of private rights are infringed, a person may go to court to seek compensation or an order to stop the offending activity.
Where a neighbour persists with an activity in contravention of planning requirements and the County will not take action to prevent this illegal use, any citizen may complain to the Ombudsman that the County or Government departments have not done their duty.
Peaceful neighbour, peaceful life
There are many types of neighbours and different kinds of disputes, but one thing we all agree on is that a polite but direct discussion about any issue can often and will most likely resolve the problem. Having neighbours has its own advantage and disadvantage however you will find that the advantages of having neighbours are more than the disadvantages. Such as having someone with an extra pair of eyes on your property when you are away, the famous ‘cup of sugar’ in case of in emergency – whether it be a quick jumpstart to a flat battery or a trip to the hospital in the case of bigger emergencies.
Even if it is merely a friend to enjoy a rugby game on a Saturday – neighbours could potentially become your best friends.
After all, your home is your most valuable asset and it is important to ensure that you get along with your neighbours and that you can return home to a harmonious environment with no conflict at the end of each day, so always be considerate and lodging a complaint, take a moment to reflect on situations where you might also have been or could be on the other side of the fence.