A recent High Court case shows just how dangerous it can be to allow a neighbour long term use of your property without having a formal use agreement in place.
The facts; and the off-course fence
In the case in question, a boundary fence between two farms had, for reasons now lost in the mists of time, been erected not on the true boundary, but slightly off course – which had the practical effect that farm A had use of 1,9 hectares of farm B’s land. Disputes arose between the owners firstly when a fire break needed to be cleared, and later when Farm A attempted to repair or replace the fence – prompting B to ask the Court for a declaration that the land belonged to it and not to A.
Now our law of “acquisitive prescription” is that anyone in possession of someone else’s property for an uninterrupted period of at least 30 years, can acquire full ownership thereof. Possession doesn’t have to be “bona fide” i.e. in “good faith” – even “male fide” i.e. in “bad faith” possession will suffice provided that the possession was –
1. Open, and
2. As if the possessor “were the owner thereof”.
The Court decides
Although it was clear that A’s owners and employees had always believed the disputed land to be theirs and not B’s, and had accordingly accessed it whenever necessary, A had failed to discharge the onus on it to prove that “there were acts of open possession of the disputed land” i.e. “patent acts of visible use or occupation of sufficient frequency to constitute continuous open possession for 30 years.” Specifically –
- There was no evidence that the fence had been erected by A
- There was no evidence of any farming activity on the disputed area (which appeared to be undeveloped bush)
- Although a gravel road on A looped into a small part of the disputed area, “regular use of the gravel road alone would not suffice to constitute possession of the disputed area; at best, it might establish use for purposes of claiming a right of way by acquisitive prescription.”
So B got its order that the disputed land belonged to it and had not been acquired by A; and A was ordered to remove any fencing erected by it on the land.
The moral of the story
30 years may seem like a long time, but deadlines tend to arrive suddenly and, critically, the 30 year period includes time in which the properties were owned by any previous owners. So even if you have only been the owner for a year or two, you could still be at risk.
B had a narrow escape here – had the disputed land been provably used for any form of farming activity, B could easily have lost ownership to A.
Make sure that any agreement with your neighbour/s to use any of your property is properly recorded – critically, make sure that your continued ownership is agreed in writing. There could be a lot at stake here – seek professional assistance!
Should you have any queries please contact Charl on charl@gtlaw.co.za or 028 2121060.
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