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tdlawyer
tdlawyer, Lawyer
Category: Property Law
Satisfied Customers: 1096
Experience:  Lawyer with 9 years experience of advising on property issues.
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Our deeds show that we own the retaining wall in our garden....our

Customer Question

Our deeds show that we own the retaining wall in our garden....our garden is approx. 5 feet higher than our neighbour's. A previous owner of our house bought the derelict barn next door and converted it, using our wall as the back wall for a garage with a sloped, tiled roof. The guttering and down pipe are in our garden.
The current owners of the barn now want to convert the garage into additional living accommodation which we believe will have a significant effect on the enjoyment/value of our property. We live in a rural area with a private garden: to have a 20 foot house wall, with associated chimney and extractor fans directly in our garden will be intolerable.
The planning department has said that, since the neighbours will erect an internal wall, they will not attach anything to our property so it is ok! Our main concern now- since it would seem that we are powerless to prevent the conversion- is that we would be responsible for any damage to their new accommodation if the retaining wall collapsed and our understanding is that we could not insure their property even if we wanted to. We have also been advised that, since the garage has used our wall to support its roof for around 14 years, we would not be permitted to do anything to affect this (ie lower/remove the wall).
Surely, they cannot use our wall for their house and leave us legally responsible for its upkeep? The neighbour has suggested that we give it to them but this is not acceptable.
Submitted: 2 years ago.
Category: Property Law
Expert:  Nicola-mod replied 2 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 2 years ago.
That is ok but, presumably the price will decrease as I will have to wait longer than expected for an answer
Expert:  Nicola-mod replied 2 years ago.
Hello,

We will continue to look for a Professional to assist you.

We can make a partial refund on request.

Thank you for your patience,
Nicola
Expert:  tdlawyer replied 2 years ago.

Thanks for your question. Apologies it's taken a short while for anybody to reply.

It sounds to me like this is going to be a Party Wall etc. Act 1996 issue. Basically, if people wish to excavate and build within a certain distance (usually 3m) from a party wall (which is a wall which separates two lands), then they have to serve a formal notice to that effect.

If the notice is not served, then the person wishing to carry out the works cannot legally do this until the notice is actually served. An affected landowner (like yourself) might be able to obtain an injunction in such a case to stop the work proceeeding without the notice being served.

The effect of the notice is that it requires the parties to reach agreement on what works can be undertaken and how they're to be undertaken. If that agreement is not forthcoming, then the party serving the notice can ask for the appointment of a surveyor (who you must both agree - in default of agreement, you both appoint your own and he appoints one to resolve the conflict) who will determine what work needs to be done (or can be done) and how it is to be carried out.

You can get full details of the PWA processes and the law here: https://www.gov.uk/party-wall-etc-act-1996-guidance

Tony

Customer: replied 2 years ago.
Apparently it will not be a party wall issue as our retaining wall has foundations deep enough to support the new accommodation so no excavation will be required.
Expert:  tdlawyer replied 2 years ago.

OKay, then in that case, it's likely to be dealt with on common law principles.

In other words, you can do as you like with your wall and a failure to maintain it will not normally mean you're liable to your neighbours unless it causes damage to their land as a result. It might not be an appropriate wall for them to rely upon, and they have no right really to do this, and this is why in this kind of situation, you often see two layers of bricks forming the wll - one from each landowner.

Also, if it's your wall, they have no right to build on it or to tie into it without your consent. If they did, this would be trespass and you would be able to take action accordingly, either via a money claim for damages or an injunction to prevent them interfering with your property.

Tony

Customer: replied 2 years ago.
Thank you....you say we would not normally be liable unless it causes damage to their land. If it collapsed, it would certainly cause damage to their property- would we not be liable for that?
The guttering for the existing garage roof obviously protrudes into our garden and the down pipe from it also comes into our garden. Can we insist that both of these be removed?
We are expecting planning permission to be granted for the conversion this week.....what would our first step be to prevent the development?
Expert:  tdlawyer replied 2 years ago.

Potentially, you could be liable if this did damage their property as a result of it falling down. But that is going to be down to the law of negligence and nuisance, and I would question whether they, by building around a structure they know, or ought to know, was dangerous or at least wanting of maintenance, might have caused their own loss. That would mean your liability would be minimised or wiped out altogether, but you're right, there is the potential for you to be held liable.

As for pipes etc., in your land/airspace, you can ask for them to be removed if they trespass.

Planning is a separate issue, and is a public law matter, which if granted you'd need to consider arguments about their building interfering with yours somehow to be able to stand any chance of stopping it, or it being in breach of restrictive covenants, for example, which you have the benefit of. You should check your land registry deeds in this respect.

Tony

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