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Background: I am in the process of buying a house in South Africa, with the transfer going to be completed in a month or two's time. There is a large fig tree close to the wall on (soon-to-be) my side of the property, which is more than 100 years old as far as I've heard, and so predates the building of both mine and my neighbour's house by a few decades (my neighbour's house was built less than 10 years ago). About a year ago a crack appeared in the kitchen floor of my neighbour's house which she alleges is due to the root system of this tree and she wants the tree to be cut down; as far as I know there isn't any solid proof. The way I currently see it, even if the damage to the floor is caused by the tree's root system, the builders of the house should have taken the roots into account when building the house.

If it is proven by a third party expert that the damage to my neighbour's floor is due to the roots of the tree on my side, can I be held liable?

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Your tree, your damage

This is a summary of the law in .

Assuming that the neighbour can prove that the tree caused the damage then the owner is liable for damage caused while they were the owner. South Africa essentially uses the common law doctrine of nuisance.

You are not responsible for any damage caused while the tree was owned by someone else but you will be for any further damage that happens after you are. However, that doesn’t stop you from being sued and having to go to the time and expense of proving the previous owner is responsible.

Depending on where you are in the negotiations it might be prudent to seek an indemnity for this from the vendor and require them to remove the tree (or reduce your offer to give yourself enough money to do it straight away). Of course, if the contracts are signed, it’s too late for that and you just have to deal with any lawsuits and tree removal costs that come along.

As for holding the engineer/builder liable - good luck with that. Since you don’t have a contract them you would need to bring a case in negligence (assuming they still exist of course). There are a number of elements that you would need to prove and you will struggle with:

  • Demonstrating that they owed you - a subsequent owner of a neighbouring property - a duty of care. Given that under the common law it’s not even clear that they owe subsequent owners of the same property a duty of care this is dead in the water.
  • showing that by failing to consider damage by the tree ten years afterwards they breached that duty by not doing what a reasonable person would do - another difficult hurdle.

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