Boundary fences on farms are regulated in terms of the Fencing Act, Act 31 of 1963. Surprisingly enough, the Act does not impose a general obligation to erect fences on the boundaries of land.
Boundary fences are however required to be constructed as a safety precaution in the following circumstances:
a. alongside railways (Railways Consolidation Act 1845)
b. around disused mines (Mines and Quarries Act, 1954);
c. around building sites adjacent to highways and roads (Highways Act, 1980);
d. to prevent livestock from straying (Animals Act, 1971).
The boundary fences play an important role as the parties generally assume that boundary fences indicate the exact boundaries of a farm. This however is not always the case and the exact boundaries of a farm should be confirmed by a surveyor with reference to the farm diagrams. Checking the diagrams prior to the conclusion of the sale and attaching the diagrams to the sale agreement is advisable to avoid any disputes relating to the boundary fences.
Unless it is an established fact that a boundary fence is located entirely on one of two neighbouring plots, it is presumed that half of the boundary is on the one property and the other half on the other property. In other words, that the neighbours are co-owners of the fence and neither owner may, without the consent of the other, remove, raise, lower, damage or tamper with the fence, unless there is an emergency justifying such action.
Contributions to the costs of erecting and maintaining boundary fences depend on whether the area falls under an area classified by the Act as areas in which contributions are obligatory or non-obligatory. The local authority would be able to confirm the aforesaid. Even if the area falls in the “non-obligatory” area, a contribution may be asked if the neighbour is going to receive some sort of benefit in consequence to the construction of the fence.
Accordingly, it is important to ask the following questions:
- Have the boundary fences been erected on the exact boundaries of the farm? Verify this information with reference to the diagrams and obtain input from a surveyor if in doubt.
- Are there any current disputes with neighbours regarding encroachments or the maintenance of boundary fences?
- Are there any livestock on the farm or on the neighbouring farms? Compliance with the Animals Act of 1971 is required. A land owner will be liable for any damages caused by his/her animals.
You are welcome to contact Daniel Els directly at Smith Tabata Buchanan Boyes: 021 850 6400 or firstname.lastname@example.org