Category Archives: Enforcement

Ownership of a Defective Retaining Wall

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.

Our Neighour Has Stopped Work but Scaffold Remains

Question

Our neighbour started a building project, a loft conversion and rear extension, but work stopped six months ago and the site has been idle since. The scaffolding remains up and does protrudes over the boundary into our property.

When we renovated our house we installed a satellite dish for television. We have not been able to use it since we moved back in due to the scaffolding blocking the signal. If our neighbour had been honest with us about when he would be carrying out his work, he could have moved scaffolding boards so we could at least watch television in our own home.

Do you have any advice as this is causing us a lot of grief?

Answer

The Party Wall Act provides a right of access to undertake notified works where access is necessary. However, the Act also confirms that the adjoining owner must not suffer unnecessary inconvenience as a result of the works. As the scaffold has not been used for the last 6 months it should have been removed.

You don’t say why work has stopped, you may not know, but if the building owner has run in to financial difficulties or fallen out with their contractor it may have been difficult for them to arrange the for the scaffolding to be removed.

If you’ve not already done so, you should ask the building owner to remove the projecting elements of the scaffold, within a reasonable time period, until they are needed again. Should he fail to do so, you could arrange for a scaffolder to remove the projecting elements (and leave them in the building owner’s garden), relocate the satellite dish etc. and claim the costs back from the building owner. If the cost becomes a matter in dispute it can be determined by the party wall surveyor(s). If surveyors were not appointed originally you still retain that right if a specific dispute such as this arises. Unfortunately, you might still need to go to court to enforce payment of costs awarded to you.

Alternatively, you could apply to court for an injunction forcing the building owner to remove the scaffold as it is now a trespass. I would recommend that you seek legal advice before taking this step.

Drilling Next Door has Caused Damage to my Property

Question

My neighbours are extending in to their basement. Recently the drilling work has intensified and I’ve noticed a crack in the hallway. Should they be using a lower level of force in the drilling i.e. so the house is not shaking and creating cracks as they go?

Answer

You don’t say whether there is a party wall award in place but if there is the appointed surveyor(s) should have considered ways in which they could reduce the risk of damage. A typical safeguard would be to prohibit the use of percussive tools (such as hammer drills, kangos etc.) on works directly affecting the party wall. Vibration can carry from works on other parts of the property, over which the party wall surveyors have no control, to the party wall and cause vibration but that would be less intense than work directly to the party wall.

Even if you consented to the works and there’s no party wall award you may want to suggest this safeguard – it is in the building owner’s interest to avoid damage.

The Act gives you the option of either allowing the building owner (or their contractor) to make good the damage or receiving a payment in lieu. This applies whether or not there is a party wall award and if there is a dispute relating to that damage you have the right to appoint a surveyor.  If the heavy work is ongoing it may be best to deal with this later in case there is further damage.

If there is a party wall award in place which prohibits the use of percussive tools but it is being ignored it is more a matter of enforcement – I would suggest that you raise it via your appointed surveyor in the first instance but if that doesn’t work the only remedy is an injunction (although I would recommend you seek legal advice before going down that route).

We Cannot Afford to Repair Our Garden Wall.

Question

My question relates to a party wall that was made of concrete blocks and has fallen down after 40 years – their were no footings for the wall and therefore insurance would not pay. Our neighbours who share the party wall live behind and slightly above us. Their garden is about 5 feet higher than ours so now we have a vertical drop with nothing to support it other than a line of trees close to the edge of their garden.

We have had some quotes and agreed on one which would costs us both £1,000. Our neighbours are panicking that the trees and soil may collapse into our garden and insist we build the new wall as soon as possible. At this time we do not have this money spare and said we would try and come up with it during the summer months.

After one week our neighbour appears to have lost patience and has bought in a surveyor and tells us via telephone message that he is going to serve a party wall notice.

Answer

If the wall is in shared ownership and has fallen in to disrepair your neighbour can force you to pay your share of the repair/rebuilding costs. They would need to serve notice under section 2(2)(b) of the Act.

The costs of work which is the subject of notice under section 2(2)(b) is defrayed according to section 11(5) of the Act. That section says that if one of the owners is responsible for the defect then they should pay for the repair. If the owners cannot agree responsibility then it will be up to the appointed surveyor to decide.

Follow-up

I don’t know how they would get the money – would they have to take us to court?. We could prove that we are severely stretched financially and may even have to sell the house to pay out £1,000.

Answer

Yes, they could take you to court to enforce the surveyor’s award. Bear in mind that you would also be responsible for half the surveyor’s fees which could add a few more hundred pounds.

Will Our Neighbour’s Extension Create a Party Wall?

Question

Our property is separated from our neighbour by an alleyway about 1meter wide owned by the neighbour. He has applied for planning permission to extend out at first floor level over the alley cantilevering from his side. The extension plans to have just a single skin wall and to use our wall as the second skin needed to comply
with building regulations. It will clearly be necessary to seal around the outer and inner skins, thus touching and using our wall.

Questions:

  1. Does he have the right to do this without our consent?
  2. Will this create a party wall with all the complications that seem to go with that?
  3. What action should we take at this stage?

Answer

Your neighbour has a right to cut a flashing in to your wall under section 2(2)(j) of the Act but must serve notice at least 2 months in advance.

If the extension is relying upon your wall to bring it up to current Building Regulation standard then he is making use of your wall. He would not have a right to do that unless it was a party wall. I would advise you to send a polite letter making him aware of these points. If he goes ahead and serves the notice then you will have the opportunity to appoint a surveyor to review the proposals if you wish to do so.

Can I Attach my Gate to the Re-built Party Fence Wall?

Question

We live in a semi, in ex council housing both my house and my neighbours are now privately owned. The plans clearly show the dividing garden wall to be a party wall, adjoined to the wall is one pillar, the original since the house was built with both houses hanging their gates off it.

Our neighbours asked could they build  a new wall I agreed the pillar was never discussed. They knocked the wall and pillar down and took off our drive gate. they have built a new wall which is lovely and i do not object to and a new pillar which is the other side of the boundary line and are telling me i cannot use it and cannot re hang my gate.

there is no room for another pillar.

what rights do i have and would it mean an expensive court case?

Answer

Despite the fact that the wall has been re-built it is still a shared wall. As such you have a right to attach your gate to it.

Building Owner is Refusing to Repair Damage Until we Consent to his Special Foundations

Question

We live in a terraced property and have been trying unsuccessfully, for over 13 months, to recover repair costs from our adjoining neighbour who started building work unlawfully and caused damage to the party wall in the process.

After much pressure and dispute, the necessary Planning Permission and Party Wall notification were subsequently put in place. The latest negotiation tactic being used by the building owner requires us to give consent to ‘special foundations’ in return for an offer to meet the cost of the repairs to the earlier damage. It would seem that we came to an impasse as we rejected the offer – on the grounds that we were being held to ransom and suggested that we would be prepared to discuss the issue of consent to ‘special foundations’ after payment had  been received for the repairs.

Recent information from our surveyor indicates that reinforcement is actually now being used regardless in the foundations currently being constructed (for a new basement). We regard this to be a further act of blatant disregard to the relevant laws but we have no confidence at all, in the process for enforcement.

Would you have any advice as to what our next cause of action should be?

Answer

Payment for damage should not be dependent on your consent to special foundations. The damage should have been assessed by the appointed surveyor(s), a payment in lieu agreed and that figure confirmed to the owners in an addendum award (or an exchange of letters).

The only way to enforce a surveyor’s award is by going to court although that should be quite straightforward.

It is difficult to advise you in detail when a dispute is already this far down the line. Have you not asked your appointed surveyor to assist? Did you have separate surveyors or did both owners concur in the appointment of an ‘Agreed’ Surveyor?

Follow-up

The initial damage was assessed by both appointed surveyors but no addendum award was issued – only the original one which did not include a payment in lieu.

As for the special foundations; the information that reinforcement is being used in the foundations had to be dragged out of our appointed surveyor. We find that information is not readily forthcoming from him even when prompted directly – which adds to our frustration at the moment. Would we need him to take this information to court? And as the work is currently ongoing, what happens if it is completed before any action can be taken?

Answer

If you feel that the surveyors have failed in their duty to deal with the damage that has occurred you can ask the selected Third Surveyor to become involved – you will find his details in the award. As an owner you can make a formal referral to him although it may be best to try and have an informal chat first as a referral will generate fees.

Regarding the special foundations – the reason why they require your consent is that they are difficult to alter later. While I would not suggest agreeing just because you are being put under pressure by the Building Owner there is no reason not to consent if they will not obstruct you in the future.

While I do not have any personal experience on this point I would guess that a court would insist that any special foundation that were cast without consent should be removed.

Can Our Neighbours Force us in to The Expense of a Party Wall Agreement?

Question

We have planning permission for a two story extension along the side of our house – the permission is to build right to the boundry. Our neighbours strongly objected to the plans at the planning meeting (although they had previously told us they had no objections) and are very angry that they have been passed. This extension is of a similar design to several others that have been approved on our small estate.

We have tried to consult with them and to come to an agreement  about the building process which will make things as easy as possible for both parties. Initially they agreed to enter into an access agreement with us which would have given us  limited access to their drive in order to put up scaffolding. This agreement would include a full schedule of work and agreements about work hours etc. and would protect them (and us) against  any damage to their property during the building.

We contacted a surveyor and it was agreed that he would prepare this agreement on  behalf of both parties as an independent surveyor..

We agreed to their request to build 6 inches inside our boundry rather than on the boundry line and also to pay them £500 for their inconvenience as they would not be able to use their drive for the 6 weeks it was agreed to let us have access. We did not agree to paying them a financial bond which they wanted to hold against possible damage,  ‘in case we ran out of money’.

They then asked that we pay their solicitor to look over the agreement and sign on their behalf and we agreed to do this also.

They have now told the surveyor that they do not want to sign this agreement but want  a Party Wall agreement instead and that they have appointed their own surveyor for this purpose. As we have not asked the first surveyor to act for us in a Party wall agreement he has not yet done so.

We do not want the additional expence of paying for a Party Wall agreement if we are not obliged to do this but are not sure if we legally  need to do this or not?

We will be building within 3 metres of their outside wall but are not certain of the depth of their house foundations, which I understand is a deciding factor of the Party Wall notice?   – Their house is the same design as ours and was built in the early 1960s. We have been asked to build our extension foundations to a minimum depth of 1000mm. with the  final depth to  be approved  by building inspector.  (A similar extension built a few doors away hit suitable ground at 900mm. so we anticipate the 1000mm will be enough)

There is currently a fence separating the two drives along part of the boundry which belongs to us (checked with Land Registry), They have a car port which protudes several inches over this fence – which is one of the reasons we have agreed to bring the wall in 6 inches. We also offered to replace their entire car port as part of the access agreement.

We now intend to build the extension from the inside (as agreed withour builder) and not to ask for access to their property at all.

Can you please offer us some advice?  From what I have told you – can they force us into the expense of a Party Wall agreement and therefore their surveyor’s and solicitor’s  fees in addition to the fees we have already incurred?

I am afraid they see this as a way of stopping us from being able to afford the building at all as it seems they can decide who works for them and therefore we will have no control over the fees we will be asked to pay.

Sorry if this is a long question but we do not want to break the law and yet cannot afford to pay for expensive work over which we have no control and currently feel we are at the mercy of our neighbours who are doing everything they can to thwart our plans and who will therefore rack up the expenses as high as possible if they are able.

Answer

The key question here is whether your works are notifiable. If the wall is built to the line of junction then it will be (section 1 of the Act) but if it is kept back by 6 inches that part of the Act will not be invoked. You seem to have a good understanding of the rules covering excavation works (section 6) but without knowing the depth of your neighbour’s foundations you would have to proceed on an assumption (foundation put in in the 1960s are unlikely to differ much in depth from modern foundations).

If you are required to serve notice then your neighbour will have the right to dissent and appoint a surveyor upon receipt of that notice – once they do that you will also have to appoint a surveyor (unless the two of you can agree to use the same surveyor which seems unlikely in the circumstances) and an award will be agreed. Your neighbour’s surveyor’s fee will have to be agreed by your surveyor or failing that by the nominated Third Surveyor. It is unlikely that solicitors would be required to prepare an award for a domestic extension so you would not have to pay for any advice that your neighbour obtains in that respect. The benefit to you of having an award is that you will have a right of access if it is required to undertake the notifiable works.

If you decide that your works fall outside the scope of the Act then you do not have to serve notice and you can just get on with it although you will not have any right of access.

Follow up

We have checked with a builder in the same road who has put up a similar extension and he says that the houses have a foundation depth of 1metre – which is the same depth  that we are required to dig the new foundations.

It therefore seems that it is fair to assume we do not need a Party Wall agreement as the new foundations will not go any deeper than that of our neighbours house. We also intend to put in the foundations  in stages – to minimise any risk.

My question is: is this OUR decision – or can the neighbours force us into a Party wall agreement even if we do not believe that the work  is notifiable?

They have already appointed a surveyor who is telephoning the surveyor that we paid to produce the access licence and schedule of works and asking why we have not served  notice of a party wall agreement.  Our surveyor  is telling him, quite correctly,   that he has not had any such request from us.

We now wish to go ahead with the bulding by building from within and  without access to  their land and without any further dealings with them – unless of course we do cause any damage which we understand we would, of course,  be liable to pay for. We intend to take photographs of both properties before we start to minimise the risk of unfair claims.

I guess my main concern is that they could FORCE us to enter into an agreement which we do not need, given that we have already paid for a detailed schedule of work etc. and that we would then be liable for paying their surveyor as well as we would have no control on the bill they might run up.

Sorry if I have repeated myself but I need to know that I am not breaking the law if I go ahead withut any further communication with them.

Answer

The Adjoining Owners cannot force you in to having a party wall agreement if your works do not come within the scope of the Act. The Act is invoked by the serving of notice so without a notice there will not be a dispute for the surveyors to resolve.

If they can prove that you are excavating below the depth of their foundations then they could apply to court for an injunction to stop the work until notice was served and an award agreed. They would be required to give a cross undertaking in damages.

The key question is whether your work will involve excavating deeper than the base of their foundations but I can’t answer that for you.

Can My Neighbour Stop Me From Enclosing His Wall When I have Planning Consent?

Question

I purchased an old single storey shop in a conservation area, which adjoined the neighbouring cottage at ground floor level, and came with detailed PP to demolish and replace with a 2 storey 3 bed cottage. PP was granted for the first floor to also adjoin the neighbours cottage and the roof line/ridge to flow together. I have now demolished the shop and detailed plans have been approved.

As we have pictures prior to the shop being built of a similar 2 storey cottage on the site my Surveyor who prepared the Party wall award assumed the elevation above the existing ground floor was a party wall. With this in mind building control has been applied for and all plans virtually completed.

My neighbour has now refused to accept the party wall award and although agrees that the ground floor is a party wall claims that the first floor elevation is his and I have no right to enclose at first floor level. I would therefore be able to only enclose at ground floor but would have to have a gap of a few inches between the 2 properties at first floor.

My builder and Surveyor say this would create all sorts of maintenance problems and I would now have to go back and redesign my plans

My question is can the neighbour legally do this. My understanding of the Party wall act is that it is meant to make development easy and at present this is hindering it. It seems ridiculous that the neighbour can effectively stop the approved design and saddle me with a lot more costs.

Although my Surveyor has advised me that I should look at redesigning I feel this is bad advise and that I have rights to enclose on his wall, as having a gap does not conform to the original planning consent which may require me to go through the planning and building control process.

Answer

If the upper section of wall is not ‘party’ then you have no right to enclose it with your new building. You may want to add up the cost of the re-design, the additional building work and the other inconvenience and see if the adjoining owner would accept a lesser amount as compensation for enclosing – that may be his motive for refusing consent.

If you can prove that the wall is party then you have a right to enclose it and no compensation is payable. If the adjoining owner’s cottage was one of a pair then the dividing wall is likely to be a party wall and that would not have changed when one of the properties was demolished and replaced with the single storey shop.

Is my Neighbour Just Chancer Who is Trying To Extort Money From Us?

Question

We have recently had a new kitchen extension built, however we were not told about the “party wall act”. We had all the necessary building permission from the council, and their own guys came round to inspect the work during the required intervals and allowed the work to carry on. At no time was the “party wall act” mentioned to us by anyone!!

Our footings drop just over a metre deep, which is just above the wall of a neighbours garage, (at the same depth as the footings). These footings are less than 3 metres away from his wall, however are only approx 3 feet along it. He has now said and has dubious photos that our footings are causing his wall to show damp seeping through, (since Sept when the footings were laid), and has been sending my wife and I almost threatening letters saying he WILL come in and excavate to protect his garage wall. WE had structual engineers report done which says there should be no prob but he says he has a report which says there will be a prob. His letters are all self written, (very badly!), and he is pushing us to pay for legal fees etc etc.

One other thing, he did a few years ago, want to buy some of our land to allow him to us the top of the said garage as a patio area, which would have been overlooking our garden and situated approx 10 foot from our little boys bedroom. We appealed against this and have heard that he was “very angry” and almost wants revenge!!

So, does he have a case, or is he just a chancer who is trying to extort money from us??

Answer

It was your responsibility to find out about the Party Wall Act and serve any necessary notices although I agree that planning offices and designers should play a greater part in making homeowners aware of the Act.

The courts tend to take a dim view of owners that proceed with work without serving notice – you may wish to read up on a pertinent case where damage was caused by a Building Owner who had not served notice and the judge took the view that it was up to the Building Owner to prove that the damage had not been caused by his works, which is the reverse of what normally happens.

I would suggest that you cooperate with the adjoining owner to establish whether your recent works did contribute towards his damp problem. Perhaps the two of you could agree upon a single expert to provide an opinion. My personal view is that the expert’s fee should be borne by you as if you had followed the proper procedures you would have incurred considerably higher expenses.