Retaining wall liability & title deeds

HodgsonJames

OK I have looked through lots of forums and even asked around but I can't seem to get a straight answer anywhere to my question - Are my title deeds enforceable on a neighbour? Some background, I am one of 4 terraced properties that have a large retaining wall at the end of our back gardens, there is a single house below whose house/property borders us and at least 2 other properties. Our title deeds all show the retaining wall and label it and show an 'H' on the wall. We have always believed that the wall was a shared responsibility between us and the property below but he has decided in a very forceful way, in letters and emails to state that he has no responsibility or liability for the wall at all and that liability for any damage from falling debris on his property or family is totally ours to bear. He says that as his deeds make no reference or mention of the wall, 'that they are silent in respect to responsibility' he has no liability. He follows that that by saying our deeds have no enforcement on him so even when we show him our deeds including a letter from a neighbour's conveyancer stating the wall is shared he refuses to accept it. We have offered 3 party mediation but he's refused so...

Are our title deeds enforceable against a neighbour whose deeds say nothing.

MovingForwards

Have you obtained a copy of his deeds to see what they say? Or just going off what he says?

What do your deeds say specifically about that wall? Or is it just the plan you are using?

HodgsonJames

His deeds say nothing, there is so little information that when I paid for a deep search of his deeds they gave me a £20 discount.

HodgsonJames

Our deeds say, 'To repair and maintain forever hereafter the fences hedges or other boundary structures now erected or to be erected on the property and marked with an inward "T" on the plan annexed hereto'
The plan identifies the front boundary with a 'T' with all other boundaries between myself and my neighbours with two Ts forming the 'H' seen on title deed plans - The retaining wall is specifically labelled as 'Retaining wall' on all my neighbours deeds and mine and is clearly marked with the double 'T' forming the 'H' between us and the neighbour below.

We are aware of the common law that in general a retaining wall is the responsibility of the land it retains OR to whom it benefits UNLESS it is specifically referenced in the deeds which it clearly is on the title plan.

markin

Who's house was built first? if its been dug out for his benefit to have a house or garden then it was his responsibility first.

gardenlaw seem to have the most experts.

https://www.gardenlaw.co.uk/phpBB2/viewforum.php?f=4

HodgsonJames

Doesn’t matter whose house was done first, the plot is so old that some deeds show the church that was originally here. The wall has never been altered but I suppose time line would be Church and his house, extension to his, church knocked down and our 4 built, he then built a 1 story terraced garden over garage with conservatory along bottom of wall. The pub who he is also arguing with was probably here before the church but it’s difficult to find out.

I’m just asking; If our registered title deeds say the wall is shared but his say nothing about the wall at all does anyone know if our deeds are enforceable on him?

Davesnave

A right, like a right of way, is enforceable even if one set of deeds is silent, so it follows that a responsibility is too. However,you still have to enforce it, through the courts if necessary, which will come at a cost.

As you've found, people will deny responsibility for things that aren't recorded explicitly in their title documentation. I have a neighbour who staunchly maintains that an entrance splay wall is for others to maintain or repair, even though she has title plans showing clearly the others have no land under the wall. Interestingly, some of the others were also keen to claim ownership of the corresponding wall when it suited them, even though my title documents show it's part of my property! In other words people believe whatever suits them, often in contradiction of the evidence.

You haven't said what the problem is here, other than that this neighbour doesn't agree with you.

HodgsonJames

Ok, the problem is;

He has stated that as far as he is concerned the houses above are fully liable for costs and maintenance of the wall. He has stated that we are liable for damage to his property or family if stones or debris fall off the wall. We have always been happy to share the cost of repairs to the wall as maintaining it benefits all and our deeds show the wall be be shared responsibility for upkeep. He recently cut down vines growing on the wall and we said that due to COVID and not being able to help that we would take his efforts as his share of cost and that we would pay for the skip and removal of the waste as our share of cost/liability. This was when he declared that he had no liability and that we were fully liable etc. We took a pause and asked him to confirm his position and he confirmed that as far as he was concerned he had no liability for cost or maintenance for the wall and only removed the vine because he had to as it was growing onto his conservatory and his daughter has allergies.

We only have access to the wall from the top and even from the bottom only half of the height is accessible due to the terrace over garage he built in 2003, 50% of the wall is totally inaccessible because it is behind his conservatory ( also built 2003 ) and would require rope access from above  to inspect.

We have offered to go though the Royal Institute of Chartered Surveyors dispute service to try and resolve it but he refuses.

I’ve not found a clear cut answer anywhere for this other than massive cost for all involved which is why I was asking the straight question about title deeds. The money regarding repair of the wall etc is a concern but not what keeps me awake it’s his statement that we would be held liable for injury to his family, there is no way without his cooperation and free and clear access that we would be able to guarantee that nothing would ever fall into the garden area that he has built under the wall. It would solve everything if he accepted some responsibility and as he has access to the wall he could inspect regularly and if any work was required we would share costs as we believed was already the case.

Davesnave

Do you have any of your 'discussions' in writing?

I don't know what you are paying for wall maintenance, but average sized skips cost about £250 upwards, so if this chap needed one of those to dispose of others' 'vines' I can see he may have a reason to be grudging about further costs. Why grow 'vines' overhanging his property in the first place?

He can, of course, claim against anyone he likes in the event of an accident, but if the wall is kept in good repair, there is no reason to suppose he'd be successful.

HodgsonJames

We offered to pay for the skip before he made his position clear. It became an issue when I pointed out that we considered the labour he carried out to be his share of the cost. The vine’s basically a weed and about every 5 to 6 years all the neighbours have got together to remove.

How can we possibly maintain a wall when the only access to its face is through a small gate and then across the front of his house since he built the extension to his garage/garden.

I just need to know if our deeds say the wall is shared and his say nothing is the liability for it’s maintenance shared?

Mistral001

I know I get shot down on this forum about seeking professional help, but surely this is something that you need paid for legal advice on. 

Do not underestimate neighbours.  Do not assume that they do not know anything about what they are talking about by their manner.  Many will consult their solicitor on these matters and rely on their advice.