Builder dispute over our boundary in wrong place

FMrobbo

We recently sold part of our garden, with planning permission for a house which sits right up against the new boundary. However when we put the new boundary fence up we unintentionally put it up 4feet further away from our house than it should have been.
The builder began his build starting from our fence and then got notice from the council that he was building in the wrong place as the new house should begin 2.5 metres from our house, not 4metres where we put the fence.
We accept that we made a mistake in putting the fence in the wrong place and have spoken to the planning department in our council who basically implied that he should have measured from our house as it is a non movable structure, and that as he was the one who began building without measuring and checking it was really his fault.
But we have now received a letter from his solicitor saying they have the rights in relation to the costs it has incurred to date in relation to excavation of the footings in order to reposition in the correct location. I believe this to be tens of thousands.
We are in the process of finding a good solicitor but thought it might be worth posting here too to see if anyone else has had a similar experience or could offer any advice.

Davesnave

A fence is a temporary structure and it's pretty common for fences not to follow boundaries exactly, so no one should use a fence to determine where to build.

That's the end of it. The builder is in the wrong. Even if you put the fence in the wrong place, you didn't instruct him to use it as a datum point, so it's his bad choice to sort out.

I'm sure your solicitor will have a sligtly more expensive way of explaining this to him.

Doozergirl

What Davesnave said! You didn't tell him to start there.

I'd ignore that letter and just see if anything else comes of it. Sometimes solicitors will write a letter for a client knowing that they're on a hiding to nothing. It's impossible that his wrong choice of start point is your problem to pay for.

Anyone would pick more than one point to measure from when plotting out the foundations for an entire house.

Mallotum_X

Builder should have checked the land he had bought. His fault for not measuring out correctly.

DaftyDuck

I've been on the receiving end of a couple of stern solicitors' letters that were utterly meaningless... threats of a huge and impending doom coming my way. But, if you re-read the letter several times, you may well see the solicitor is actually covering his own butt, doing what he is asked, but clearly expressing his client's view, not his or that of the law in question.

Clues such as: "My client states...", "It is my client's wish".... "it might be..." "He has asked me to point out..." Obviously not always present, but indicative that the solicitor doesn't actually believe in what he is writing.

However, clearly the builder has started in the wrong place, and you didn't tell him to. The fence is a temporary structure, just a barrier, and not in any way representative of the new border. Had you erected it well onto your own land (which you are fully entitled to do), would the builder be insisting he could build on what would be your land? I think not.

I suspect it might be worth consulting a solicitor, but I'd ask them to keep any consultation, any letter, and their bill, as brief as possible.

G_M

A fence does not legally define a boundary. Yes, it is common practice to erect fences on boundaries, but a boundary can be left entirely unfenced, and conversely fences can be erected in places other than a boundary.

My concern however, would be that by erecting the fence where you did, you commited a civil trespass. Normally there is no penalty, as the land owner has to show an actual loss resulting from the trespass. You see where I'm going with this?

Do you have legal cover as part of your buildings insurance? Via your trade union? or some other source? If so, get advice. If not, I'd wait and see what happens next but maybe identify a solicitor (some offer 30 minutes free advice) just in case.

Meanwhile do NOT respond.

DaftyDuck

But G_M, would it be seen as reasonable to base the putting-in of foundations on the fence position? If the OP had insisted the line was correct, and building work gone ahead, maybe. However, here it seems the builder just used a temporary structure to base his measurements on... and pp would have surely stipulated distance from existing physical features, not the as-yet-non-existent fence.

I do agree, don't communicate directly yourself. Either nowt, or use a solicitor.

G_M

DaftyDuck wrote: »

But G_M, would it be seen as reasonable to base the putting-in of foundations on the fence position? .

I don't know.

And I prefaced my remarks with 'my concern is...'. It's just another possibly relevant factor.

The OP did after all trespass on neighbour's land, did, erect a fence on neighbour's land, and neighbour has suffered a loss (if his builder charges him for extra work) as a result.

Whether builder can sue OP - I don't know.
If builder charges neighbour extra, then whether neighbour can sue OP - I don't know.

Doozergirl

G_M wrote: »

I don't know.

And I prefaced my remarks with 'my concern is...'. It's just another possibly relevant factor.

The OP did after all trespass on neighbour's land, did, erect a fence on neighbour's land, and neighbour has suffered a loss (if his builder charges him for extra work) as a result.

Whether builder can sue OP - I don't know.
If builder charges neighbour extra, then whether neighbour can sue OP - I don't know.

The OP owned all of the land before the builder bought it. They wouldn't be trespassing by erecting a fence on their own land, if they did it before they completed.

Then it would just be a fence.

DaftyDuck

Admittedly now the builder's fence, but might be cheap way of sleeping at night... your fence on your land, your problem...

A view I'd still only express through a solicitor!

davidmcn

I can't see any legal case sticking, unless there was some odd clause in the OP's contract. Builder should know better than to start measuring from a recently-erected fence.