Recent Property Law Cases

Possession of a building, or fixed property, often plays an important role in various spheres of property law disputes about delivery, or builder’s liens, for example.  It’s frequently assumed that possession can pass simply by the old occupier making the keys to the property available to the new occupier.  That  might not be enough, according to the Full Bench judgment in Wightman t/a JW Construction v Headfour (Pty) Ltd 2007 (2) SA 128 (C).  A dispute as to whether building work was properly done had developed between the applicant, a building contractor, and the owner.  Following settlement talks, the applicant agreed to resume work to the premises and to deliver a duplicate set of keys to the owner, apparently to enable the owner to inspect the building works.  The owner then appointed another contractor to complete the building works, and refused the applicant access to the premises.  The applicant instituted litigation, alleging that he’d retained a builder’s lien by virtue of retaining possession of a set of duplicate keys to the premises.  He was unsuccessful.  For possession of keys to constitute possession of the building, the court held, such possession had to render the building subject to the power and control of the keyholder, to the exclusion of others.  Therefore, where the owner acquired possession of a duplicate set of keys, the builder had lost his right of possession, at least in regard to the owner. 

The lesson to be learnt – entrusting duplicate keys to others might give rise to disputes as to who was, in law, in possession of the building.

What to do with troublesome neighbours, whose activities on their properties constitute an intolerable disruption, was the issue considered in two recently High Court cases.  The Sunset Links development in Milnerton was marketed as an estate adjoining a golf course.  This feature proved to be less than attractive to the applicant, whose house adjoined the sixth hole of the golf course.  The applicant approached the court complaining that the property had, on several occasions, been struck by golf balls and that he feared for his safety (not to mention his windows).  The Milnerton Golf Club had attempted to solve the problem by planting trees, and limiting the golf played on the sixth hole.  The court pointed out that it could only prevent a landowner from utilising his property in a particular manner if such use was unreasonable, or constituted a departure from what would normally be expected in the circumstances.  In assessing the reasonableness of the actions taken by the Milnerton Golf Course, Traverso J stressed the fact that golf had been played there since 1925, that the applicants had knowingly purchased property alongside a golf course and that the complaint was not directed at the golf played on the neighbouring land, but at the number of golf balls deflected onto the applicant’s property.  There were, however, no useful facts before the court showing what would constitute a reasonable, as opposed to an unreasonable number of off-course golf balls.  Dismissing the application, Traverso J said “living next to a golf course brings certain benefits in relation to the environment in which one lives.  However, it also entails a real danger that the properties so situated will be susceptible to being hit by golf balls.  That is a risk that any reasonable person will accept”. (Property owners living alongside cricket stadiums, and javelin throwing facilities, would similarly be well advised to take care). 

The applicants in Laskey and another v Showzone CC and others 2007 (2) SA 48 (C) were more fortunate.  The applicants owned and occupied two inner city apartments.  An adjoining theatre / restaurant had become increasingly popular and, in consequence, its theatre performances had become increasingly noisy.  Binns-Ward AJ held that this constituted an unjustifiable nuisance, and granted interdictory relief.  The decibel level generated by the theatre performances far exceeded that which an apartment owner could reasonably be expected to tolerate.  The installation of acoustically insulated material would greatly lessen the noise level and, in the court’s view, the theatre owners could not reasonably refuse to take those remedial measures.  The respondent was interdicted from conducting its theatre restaurant business until effective acoustic insulation had been installed.

When adjudicating on nuisance-based litigation between neighbours, courts are thus likely to carefully evaluate the reasonableness of each party’s conduct, and the availability of suitable remedial measures.