Legal Position For the Cost of Repair

Ponchob1

I'll try and keep this as brief as possible but please bear with me if this ends up being a long post.

A retaining wall separates my detached property and the adjoining owner garden (commercial property). My wall is built into my property and supports the higher level of my garden. Given the supports the wall provides to my property, i  assumed it was mine. After completing and moving in, i planned on building out a rear kitchen extension to replace the conservatory and after speaking with the structural engineer, they advised the retaining wall was in a dangerous state and in need of repair. He further advised that any attempt we make to start digging our extension foundation would result in the collapse of the wall. Initially, our design was to build an extension separate from the wall.

Given the need for a repair and to avoid delays, we spoke to the adjoining owners explaining the situation and asking for access to be granted for the repair. They refused and we had to get party wall surveyors involved. The adjoining owners were so nasty throughout the process, and health and safety visited the property as it is a commercial space used by customers and deemed it unsafe. They were then forced to put up a temporary safety fencing to protect their garden users.

We had a party wall award drawn up for the work to be completed at our expense and to use the wall as part of our extension. During the process of rebuilding the wall, the neighbour kept harassing our builders. They then informed us they owned the wall and they will be holding us responsible for reinstating the wall back to its former dangerous state( stupid I know). We then got a RICS surveyor involved to review the situation and determine boundary and wall ownership. Their report confirmed the wall was indeed theirs and not ours. The wall has now been completed and partly built up for us to use when we start the extension. The party wall design that was agreed was to build the wall up to extension level(This was when we assumed we own the wall)

Given the new information on wall ownership, our solicitor has advised on our legal position 

We ask for their permission to use the wall as part of our extension and ask them to pay half the cost of the wall rebuild

We don’t use the wall and ask them to pay 100% for the wall repair and revert back to our original design of building the extension separate from the retaining wall

There is a 100% this would end up in court as we'd like to recover our money back but unsure what chances we have of the court deciding in our favour

We'll be getting the full surveyors report next week but I'm keen to hear opinions on this

If this were to go to court, what are our chances of recovering the cost of the wall? In hindsight, they wouldn’t have repaired that wall and it would have devalued my property and prevented us from building an extension.

We have evidence on the state of previous wall being dangerous and in need of repair

Please advise

lika_86

You should ask your solicitor.

propertyrental

Legal advice needed, but my guess is that you have done work to someone else's property without their consent. So
1) your chances of reclaiming your costs to date are thin to zero
2) you may well be liable for the costs the wall-owner incurs in reinstating/changing his wall
3) you will probably be liable for any legal/court costs the neighbour incurs

As for your extension, clearly that will need to be built on your, not the neighbour's land. If the wall is the neighbour's, then you can't build on/use the land his wall sits on.

But who knows? I may be wrong!

GDB2222

Leaving aside the annoyance and wanting to get even, is it really worth embarking on major litigation to recover any of what you have spent? 

Suppose, purely for example, you spent £20k on the wall. And suppose your own legal fees for the litigation come to £50k. IF you win, you will get your £20k, plus costs. But, costs doesn’t mean the whole £50k you spent, but around 70% of that figure. So, even if you win, you won’t get that much. And, if you lose, …

In short, I’d be very loth to get embroiled in litigation where the costs are large in comparison with the amount you want to claim, regardless of whether you have a good case.

Of course, those example figures could be entirely unrealistic. You may have spent £10m on the wall, and your lawyers may reckon their fees would be a tiny fraction of that. 

Ponchob1

propertyrental said:

Legal advice needed, but my guess is that you have done work to someone else's property without their consent. So
1) your chances of reclaiming your costs to date are thin to zero
2) you may well be liable for the costs the wall-owner incurs in reinstating/changing his wall
3) you will probably be liable for any legal/court costs the neighbour incurs

As for your extension, clearly that will need to be built on your, not the neighbour's land. If the wall is the neighbour's, then you can't build on/use the land his wall sits on.

But who knows? I may be wrong!

The neighbour agreed to the repair of the wall. We both had surveyors involved and a party wall agreement was served before we embarked on the repair. 

anselld

Ponchob1 said:

propertyrental said:

Legal advice needed, but my guess is that you have done work to someone else's property without their consent. So
1) your chances of reclaiming your costs to date are thin to zero
2) you may well be liable for the costs the wall-owner incurs in reinstating/changing his wall
3) you will probably be liable for any legal/court costs the neighbour incurs

As for your extension, clearly that will need to be built on your, not the neighbour's land. If the wall is the neighbour's, then you can't build on/use the land his wall sits on.

But who knows? I may be wrong!

The neighbour agreed to the repair of the wall. We both had surveyors involved and a party wall agreement was served before we embarked on the repair. 

It was agreed to build a party wall.  It was agreed to be at your expense.  So continue with the agreed plan and build the extension.  Any further litigation will just delay the build and further antagonise the neighbours.  The Solicitor may be legally correct but the neighbours are not going to be happy to contribute half the rebuild cost just because you wanted an extension.

ThisIsWeird

Ponchob1 said:

The neighbour agreed to the repair of the wall. We both had surveyors involved and a party wall agreement was served before we embarked on the repair. 

That's good - so they'd surely have no chance of the daft suggestion it is restored to the previous dodgy state.

What else was 'agreed'? That you could build on this wall and make it your extension's wall? But, if they did agree to this, it was when they thought it belonged to you? I mean, given their disposition, surely there's no way on this planet they'd have agreed to this if they'd known it was theirs?

From what you now describe, this is not a 'party' wall, but a retaining wall fully on their land? So, if they say 'No' - and I can't fully blame them - you simply cannot build on it.

And, had you known from the start that this retaining wall was theirs, you almost certainly would have had to pay for fixing it as part of the extension build, since to not do so would be to literally undermine it.

And if they'd have said "Don't touch our wall!", there is likely nothing you could have done, and your plans would have been scuppered there and then, at least without unpleasant legal action to try and 'force' them (unless it was actually falling down and a hazard, in which case you could have taken action against them to force them to repair it. But, apart from being a bit 'dodgy', it wasn't going to fall down for years, was it? In which case, you'd have had to wait years).

On balance, then, it seems as tho' you are in one of the best possible situations given the possible alternatives; fait-accompli - the retaining wall has been fixed so shouldn't delay you, and you can hopefully proceed with your build, albeit now completely within your own boundary.

So, yes, I'd avoid any legal case like the plague. I think, swallow the cost of repairing this wall, and build within your own boundary.

Ponchob1

ThisIsWeird said:

Ponchob1 said:

The neighbour agreed to the repair of the wall. We both had surveyors involved and a party wall agreement was served before we embarked on the repair. 

That's good - so they'd surely have no chance of the daft suggestion it is restored to the previous dodgy state.

What else was 'agreed'? That you could build on this wall and make it your extension's wall? But, if they did agree to this, it was when they thought it belonged to you? I mean, given their disposition, surely there's no way on this planet they'd have agreed to this if they'd known it was theirs?

From what you now describe, this is not a 'party' wall, but a retaining wall fully on their land? So, if they say 'No' - and I can't fully blame them - you simply cannot build on it.

And, had you known from the start that this retaining wall was theirs, you almost certainly would have had to pay for fixing it as part of the extension build, since to not do so would be to literally undermine it.

And if they'd have said "Don't touch our wall!", there is likely nothing you could have done, and your plans would have been scuppered there and then, at least without unpleasant legal action to try and 'force' them (unless it was actually falling down and a hazard, in which case you could have taken action against them to force them to repair it. But, apart from being a bit 'dodgy', it wasn't going to fall down for years, was it? In which case, you'd have had to wait years).

On balance, then, it seems as tho' you are in one of the best possible situations given the possible alternatives; fait-accompli - the retaining wall has been fixed so shouldn't delay you, and you can hopefully proceed with your build, albeit now completely within your own boundary.

So, yes, I'd avoid any legal case like the plague. I think, swallow the cost of repairing this wall, and build within your own boundary.

Thank you for your response.


The party wall that and drawings agreed was to rebuild the wall as part of the extension which was fine(at the time we both assumed i owned the wall so it wouldn't have made any sense for them to say no given they didn't own the wall) the wall was in the process of being built when they informed us they owned it and it wasn't ours. If at the time we knew the wall was theirs, we would of course not have taken on the cost and requested them to repair and if they had refused, we simply would have proceeded with our extension which would have resulted in the collapse of the wall forcing them to repair either way. Of course we would have been happy to pay part of the repair if it meant we could use the wall. Using the wall here is optional might i add and our extension can be built separately to the retaining wall. Health and safety deemed the wall unsafe and asked safety fencing to put up in the event of it collapsing so i'd consider that a dangerous state. A wall that would collapse if digging was done close it seem to me to be in a state of repair. Yes we plan on building our extension without using the wall but wanted to know if we had a case of recovering some of the retaining wall cost. Thanks

propertyrental

Ponchob1 said:

propertyrental said:

Legal advice needed, but my guess is that you have done work to someone else's property without their consent. So
1) your chances of reclaiming your costs to date are thin to zero
2) you may well be liable for the costs the wall-owner incurs in reinstating/changing his wall
3) you will probably be liable for any legal/court costs the neighbour incurs

As for your extension, clearly that will need to be built on your, not the neighbour's land. If the wall is the neighbour's, then you can't build on/use the land his wall sits on.

But who knows? I may be wrong!

The neighbour agreed to the repair of the wall. We both had surveyors involved and a party wall agreement was served before we embarked on the repair. 

Sorry. I was confused because you said: "we spoke to the adjoining owners explaining the situation and asking for access to be granted for the repair. They refused "

deannagone

The solution seem simple here.  Put the repairs down to experience as legal costs could drown out any successful claim (and then you have to actually get the money). You didn't know the repairs were being done to a wall they owned when you did it, and unfortunately, you can't turn back time.  You can just risk losing more money.

And build the extension you want away from the wall.  

It might not be a solution you are totally happy with, but it is a solution  to get what you want.., the extension.  Fix on that.

ThisIsWeird

Ponchob1 said:

The party wall that and drawings agreed was to rebuild the wall as part of the extension which was fine(at the time we both assumed i owned the wall so it wouldn't have made any sense for them to say no given they didn't own the wall) the wall was in the process of being built when they informed us they owned it and it wasn't ours.

1) If at the time we knew the wall was theirs, we would of course not have taken on the cost and requested them to repair and if they had refused, we simply would have proceeded with our extension which would have resulted in the collapse of the wall forcing them to repair either way.

2) Of course we would have been happy to pay part of the repair if it meant we could use the wall. Using the wall here is optional might i add and our extension can be built separately to the retaining wall.

3) Health and safety deemed the wall unsafe and asked safety fencing to put up in the event of it collapsing so i'd consider that a dangerous state.

4) A wall that would collapse if digging was done close it seem to me to be in a state of repair. Yes we plan on building our extension without using the wall but wanted to know if we had a case of recovering some of the retaining wall cost. Thanks

1) You clearly knew the wall was dodgy, so if you had proceeded with your build and caused the wall to collapse, you would have been liable - no 'forcing them to repair it' malarkey. In any case, I suspect the builders would have refused to proceed on this basis - 'cos they might have ended up liable. The situation with this wall would have had to have been resolved and agreed before proceeding in any case.

2) Fair enough - and that's right. It's of mutual benefit.

3) Did H&S deem it unsafe due to the forthcoming building work, or in general - your day-to-day personal safety? If the latter, then, yes, you could have forced them to repair it through a, possibly drawn-out, legal process. But if the wall was not going to collapse in the foreseeable future without your building work, then there was nothing you could have done; you'd have to wait until it was clearly becoming a safety risk.

4) Depends on the digging. You are talking about a foundation trench, not a bit of garden work. Regs on foundations seem more demanding these days, so a very good chance that your extension's founds would be deeper than that of this wall, or could undermine it in other ways. That, in itself, does not indicate a fault with the wall, or it being in a poor state of repair. If that wall would continue in a happy state for another couple of decades, then it's an 'ok' wall, and you'd be liable for causing any damage to it that wouldn't otherwise have occurred.

On balance, I'd say you have arrived at the best outcome. Imagine had you carried out proper due diligence and discovered that this wall was your neighbour's... What then? You'd tell them to repair it? I think I know what they'd say. You'd continue with the work? Cool, that's fine - until the wall starts to move, and then you'd have to pay for it being repaired - just as you have done.

The only actual 'loss' that I can see is of the reduced size of your extension. But since that wall never was yours, that is surely the correct outcome. Lawdie! Imagine had you built the extension and then they realised the retaining wall was theirs - your extension would be trespassing! No idea what - if anything - they could retrospectively do (make you knock it down?!), but it would - I'm pretty sure - have been a massive legal headache at best, including when either of you come to sell.

If you agree with the above - and it's only my view and best judgement on the issue - then it would seem that you haven't actually paid out for anything you wouldn't have had to do anyway. And you very likely dodged a truly hellish legal bullet. So, take advantage of this and make it clear to your neighbour that you are 'happy' to accept the full cost of repairing their wall, 'sorry for all the hassle', and you wish them a HNY. Do this through gritted teeth if necessary, and walk away head held high; leave them wondering what the hell you are on - 'cos they'll want some.