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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9879
Experience:  I have been practising for 30 years.
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There are long stone garden walls separating the garden of my 200-year

Resolved Question:

There are long stone garden walls separating the garden of my 200-year old house from adjacent gardens. There is no way to tell who's land the walls are on or if they straddle the boundary. In part the walls are retaining walls and some of the retaining parts are collapsing.
Is there any way to force a neighbour to split the cost of repairs if they do not want to do so ?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Is the property leasehold or freehold?Is any liability to repair noted in either sets of deeds?
Customer: replied 1 year ago.
We are Freehold. There is no liability to repair noted in either set of deeds.
Customer: replied 1 year ago.
Top be precise there is nothing noted on the land registry and the original deeds cannot be located. I am told that it is unusual round here for deeds to make clear ownership of walls or define maintenance obligations.
Expert:  F E Smith replied 1 year ago.
If there is nothing mentioned in the deeds about ownership and no evidence on the ground, they are presumed to be jointly owned.If the property is leasehold there is sometimes a provision in the lease whereby the leaseholder may be liable for repairs such as this. It only happens with freehold property if each subsequent owner covenants to do the repair.Unfortunately, your neighbour may like the wall in its falling down state and therefore you cannot compel him, in most cases, to contribute towards the repair.If it is dangerous, the situation is different and you can ask the Local Authority to serve a dangerous structure notice on him (and you) which would compel you both to make the wall safe. However may not do what you actually want to do because he may simply want the wall knocked down or removed. He cannot be compelled to rebuild it.I wish I could give you a more favourable answer but that is the situation.Please don’t forget to rate the service positive.Best regards.FES
Customer: replied 1 year ago.
Thanks. ***** just check two things people have mentioned to me -
Does it make any difference that the wall is curtilage of listed buildings (presumably not allowed to demolish / let fall down )?
Does party wall act come into play at all in terms of forcing cost sharing ?
Thanks
Steve
Expert:  F E Smith replied 1 year ago.
The Party Wall Act does provide for costs for repairs to party structures to be shared between adjacent owners. Section 2 provides it be shared and 11 (4) provides for work which needs to be carried out to defects or for want of repair but then provides for it to be in such proportions with regard to the use which the owners make of it. Hence, if it was a party wall between the two houses, it would be shared equally. For a garden wall, it’s likely the neighbour could be compelled.However the wall is part of the listing, which you have only just mentioned, the situation is different and the local authority will insist that it’s repaired and then, the costs would be borne equally by the parties.
Customer: replied 1 year ago.
Thanks - very helpful but should I presumably read 'UNlikely' in 'For a garden wall, it’s likely the neighbour could be compelled'?So, am I right to go away thinking that we are unlikely to be able to compel sharing of costs unless council requires listed wall to be repaired in which case, as there is no evidence of ownership, it will be assumed to be jointly owned and deemed to be a party wall for the purpose of the Party Wall Act which we could make use of if we cannot otherwise reach agreement with our neighbour ?
Expert:  F E Smith replied 1 year ago.
Apologies for the typo. That is correct as is the rest of your thinking.Best wishes. FESPS Please dot forget to rate
Customer: replied 1 year ago.
Thank you very much for giving me a very clear position. One last thought has occurred to me - does it make any difference that as a retaining wall the stones (and ultimately the neighbours garden ) are falling into my garden? As the wall is only a few feet high I think it would be a push to suggest they are dangerous (except perhaps to hedgehogs!) but were the wall to remain un-repaired would I be entitled to clear and dispose of the stones that have fallen into my garden ?
Expert:  F E Smith replied 1 year ago.
That puts a slightly different slant on it. The stones falling into your garden constitute private nuisance and you are allowed to abate that. The neighbour can simply remove them however.If the stones keep falling, you can make him do something to prevent them falling. If they are falling, and they are dangerous, with and come back to the dangerous structure notice.Check your house insurance as many house insurance policies have legal expenses cover that may pay for any dispute legal costs. If the neighbour however simply refuses to do something about this, whether he is liable or not, you are faced with taking him to court.
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Customer: replied 1 year ago.
Thank you