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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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We are in the process of building an extension. Neighbors

Resolved Question:

We are in the process of building an extension. Neighbors are new but signed a party wall agreement. We have now found that an old conservatory is 8 inches on our land and was cracked (which we have no proof of). The builders continued to dig the foundations and now they are saying we caused cracks and they want to stop building work on ours to underpin their conservatory which is on our property. Where do we stand?
Submitted: 3 months ago.
Category: Law
Expert:  F E Smith replied 3 months ago.

How long has the neighbours conservatory been in place for?

You say that the conservatory is cracked but you have no proof. Do you mean the neighbours are alleging that you have caused the cracks and that there were no cracks there before?

Is it likely that any of this work has caused those cracks?

How close to their conservatory have you been excavating?

Customer: replied 3 months ago.
The conservatory is quite old - in fact it's a lean to not a conservatory- and was clearly in need of repair before. It was in place when we moved in 2010 and new neighbours have only been renovating ( not living in) the property for about 5/6 months.
Before any excavation took place our conservatory was removed which showed existing cracks in neighbours lean to. They are now alleging that building work has caused new cracks. We have no proof however the lean to is 8 inches on our land. We have only excavated up to (not next to) the neighbours lean to. It is very unlikely to have caused the cracks we can see as all we have done is take the top layer of soil and remove the conservatory floor near their lean to. He has not shown us any new cracks just written a letter which I will try and attach.
Customer: replied 3 months ago.
New neighbors expressed that they wanted the lean to removed and replaced but had bought the wrong second hand conservatory to replace it. This was all verbal communication. Now they plan on keeping lean to and have started viewings to rent property.
Customer: replied 3 months ago.
Can we ask for his lean to to be removed as it is on our land?
Expert:  F E Smith replied 3 months ago.

If the conservatory has been in place for more than 20 years than the neighbour has acquired an easement for it to remain in place. Therefore the fact that it may be on your land is immaterial.

If it has been on your land for less than 20 years, and they won’t remove it, you can apply to court for an injunction to make them remove it although it’s more likely that the court would award you compensation rather than make them tear the whole structure down.

If the work has caused cracks or caused cracks caused the cracks to widen, then the contractor is liable for that damage.

It will be easy enough for a surveyor to look at the cracks and to give a report to say whether they are new or long-standing. Just because there are cracks, doesn’t necessarily mean that the whole thing is moving and will continue to move. It would need a structural engineer’s report.

However, their request for work to stop, adjacent to the conservatory, pending further investigations is not unreasonable and if you don’t agree to that, they could apply to court for an injunction and legal costs, and that injunction would be to make you stop work pending the conclusion of the investigations.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.


Customer: replied 3 months ago.
Is there anything we can do as it seems very unfair that someone is able to build on our land then tell me that I need to accommodate them?
Expert:  F E Smith replied 3 months ago.

The legislation governing this, the Prescription Act goes back to the mid-19th century. It is the fact that it’s been on the land for so long which is problematical for you. The idea of the legislation is to stop landowners standing by, watching neighbours build on land which doesn’t belong to them (trespassing) and then expecting the structure to be removed. Even if it had only been there for a few years, and there was no easement, the court are unlikely to order it to be taken down.

Customer: replied 3 months ago.
Would this be except able as a response:Hello, Kelvin received your letter this morning and I have tried to phone. We both waited but had unforeseen commitments with our youngest child.
I apologise if as you say you felt our builders were aggressive.
You stated in the letter that you to have been in a similar situation therefore you will know the difficulty we face with finding your lean to to be on our land. You had verbally said last week that you would be taking it down and replacing with a conservatory you had already purchased; is this still the case? As obviously this would resolve the issue of it being on our land and the cracks.
We to, do not want any bad feeling as I feel we have both accepted the works going on in both houses with good faith.
I tried to phone earlier to ask how you would like to proceed and would prefer not to do this via text but appreciate that we are both busy people.
Our builders will as requested stop any work adjacent to your lean to until this is resolved but as you rightly said we too do not want any pointless activity but would rather come to a swift conclusion that can satisfy both of us.
Thank you
Expert:  F E Smith replied 3 months ago.

I think that letter is absolutely fine subject to a few typos.

It’s non-aggressive and it offers to put the work in abeyance near to the conservatory and to talk about it.

The suggestion about not doing it by text is excellent but I would suggest that you actually put down about talking face-to-face over a cup of tea

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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