Ownership of a Defective Retaining Wall

by The Party Wall Surveyor

Question

My neighbour’s back garden is approx. 5ft higher than mine and there is a wall at the boundary. Part of the wall is leaning towards my garden and there are several large cracks. I’ve spoken to my neighbour about repairing it but they don’t want to know.

Answer

The first step is to review the property’s deeds in case they provide any information on who is responsible for maintaining the wall.

Where the status of a boundary wall is unknown, it can be considered to be a party structure with a shared responsibility for maintenance. However, where the wall has a retaining function the presumption is that responsibility for the maintenance generally lies with the owner of the property who derives benefit from the support. This is supported by section 11(5)(a) of the Party Wall etc. Act 1996 which states that the cost of repairing a party structure is defrayed according to ‘the use which the owners respectively make or may make of the structure or wall concerned’.

I would suggest treating the wall as a party structure and serving notice on your neighbours exercising your right of repair in accordance with section 2(2)(b) of the Act. Make it clear when serving that you believe them to be responsible for the full costs of repair and that you will provide an estimate of those costs in due course. Should they have some paperwork which confirms that you are responsible for maintaining the wall it should be flushed out by serving notice. If they dispute either responsibility (without providing any evidence) or the costs, surveyors would have to be appointed to determine.

The disadvantage of pursuing this course of action is that the costs are recouped retrospectively from the adjoining owners and, should they fail to pay, you would have to enforce. You would not be going to court to argue your case, as that would already have been determined by the surveyors, only to enforce the decision which is much more straightforward.