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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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RETAINING WALL. Between my property and my neighbour, there

Customer Question

RETAINING WALL. Between my property and my neighbour, there is a 15metre long retaining wall (ranging from 50 to 150cm in height). I'm on the lower ground level. The wall has been pushed towards my side by two trees on my neighbours side. Who is financially responsible for the repair of the wall, as it is their land being retained?

There are a couple of trees on my side that are effectively holding the wall up. I'm happy to pay for the removal of these particular trees, but should my neighbour pay for the bulk of the reparation of the retaining wall itself?

We are getting quotes, in amicable agreement with the neighbour, but there are 5 flats that make up next door and only two of us on my side (I'm the freeholder and my leaseholder lives upstairs). The key thing is we are yet to discuss how to divide the costs. The boundary in question is on their south / east side so it is their responsibility, but it is not entirely clear who 'owns' the wall. I think they're expecting a 50/50 division of costs between properties, but I'm reluctant to pay more than I legally need to. The quote for the work is averaging around £6000 in total.
In order for them to successfully put up a fence (which their deeds stipulate) they need to address the wall issue. And any attempt to remove the problematic stumps that are pushing the wall, would result in more wall damage. So the whole wall/fence job needs to be done together. I'm keen for it to be done for privacy issues too.

Extracts from the deeds:

MY DEEDS:

Schedule of restrictive covenants

THE FIRST SCHEDULE above referred to
1. BUILDING LINE AND FENCES.- Where a building line is shewn on
the Plan, nothing is to be erected between that line and the frontage
line,except fences, which are not to exceed six feet in height. No
fence shall be used as an advertising station, or to be so
constructed or used as to be a nuisance or injury to the Owners of
the adjoining plots.Each Purchaser is to make, when required by
notice in writing from the Vendors, and afterwards to
maintain,good and sufficient fences on the sides of his plot
marked T within the boundary lines. If any Purchaser shall make
default in erecting any such fence within thirty days,or in
repairing any such fence within ten days after notice requiring
him so to do shall have been given to him or left for him at his
residence or on his Plot by the Vendors,then the Vendors shall be
at liberty forthwith to erect or repair any such fence,or to erect
and keep in repair a temporary fence; and the Purchaser making any
such default shall on demand repay to the Vendors all moneys
expended for the purposes aforesaid and all expenses relating
thereto.


NEIGHBOURS DEEDS:

Proprietorship Register

3 (09.01.2006) The Transfer to the proprietor contains a covenant to
observe and perform the covenants referred to in the Charges
Register and of indemnity in respect thereof.

Schedule of restrictive covenants

(b) The purchaser is to make and erect within one calendar month
after notice in writing from the vendors and afterwards to
maintain good and sufficient fences not exceeding five feet in
height on the side of his plot marked T within the boundary lines.
No fence shall be used as an advertising station or be so
constructed or used as to be a nuisance or injury to the owners of
the adjoining plots. If any purchaser shall make default in
erecting any such fence within thirty days or in repairing any
such fence within ten days after notice requirirng him so to do
shall have been given to him or left for him at his last known
place of residence or on his plot by the vendors then the vendors
shall be at liberty forthwith to erect or repair any such fence or
to erect any keep in repair a temporary fence and the purchaser
making any such default shall on demand repay to the vendors all
moneys expended for the purposes aforesaid and all expenses
relating thereof.

NOTE 2: A 'T' mark referred to in clause (b) above affects the
southern boundary of the land in this title.



Please help if you can. Many thanks

MD
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Is it clear whether next doors land has been artificially raised, or yours lowered or alternatively whether the height difference is simply natural topography of the land please?

Customer :

Ignore that last mail. I was trying to send a pdf and hit return. Images to come imminently.

Joshua :

thank you. I have looked of the images you kindly posted. could you tell me from your knowledge of the properties, is it clear whether next doors land has been artificially raised, or yours lowered or alternatively whether the height difference is simply natural topography of the land? do you know whether the properties were built at roughly the same time or if one was built later than the other?

Customer :

As you can see, it may be a combination of topography, and man-made adjustments to the ground levels. The houses in question are Victorian, to give you an idea of age.

Joshua :

Thanks. I presume it is not clear from the deeds which house was built first?

Joshua :

Would you like to continue/

Customer :

Hi Joshua. The system seemed to fail a while ago and wouldn't reload. Is there any way I can send you pdfs of the two sets of deeds? It would make it easier to answer your question. Also, is there any way of seeing our conversation history? That would also be useful. Many thanks, Deon

Joshua :

I am sorry if you have experienced any technical difficulties. Are you able to read this post?

Joshua :

You should be able to use the paperclip icon to send the pdfs.

Customer :

My DEEDS
Full Size Image
I tried the attached pdf, but I gather it hasn't worked. The paper clip icon only appears to invite image attachments, which is frustrating. I realise you aren't technical support but if you have any other suggestions, please shout! Otherwise I'll send you the deeds in phases. Which section of the deeds may have the answer to your question? If you wouldn't mind resending your question, I can help look for the answer. Thanks, Deon

Joshua :

I seem to have them. Just looking at them now...

Customer :

Full Size Image
These are my neighbours deeds. Glad you're able to read them.

Joshua :

Thanks. I've been through these...

Joshua :

English law is hopelessly deficient when it comes to responsibility and ownership of boundaries. There is no statutory law and the only way in which obligations are enforced are by way of covenants which easily lapse. The normal position with most second-hand properties, as opposed to new build properties is that unless either party can prove who erected a wall or fence, neither party can lay claim to it as their own unless it is clear that it is built on their land - sometimes this is clear but often it is not - and therefore except where a binding covenant can be shown to exist which is rare in second-hand properties, neither party can enforce the other to maintain a boundary structure or make a claim against the other for damage or removal of the same. If the wall is expressed to be a party structure in your deeds and it may belong to both of you and the joint in terms of responsibility...

Joshua :

The position is more complicated by the fact that this is a retaining wall. As above, there is no statutory authority or law that assists but there is some guidance in common law decisions which point to relevant issues being how the land came to be higher in the first place-i.e. is it naturally higher or was the land artificially raised or conversely the lower land artificially lowered and responsibility of a landowner for land slip

Joshua :

If one can show who raised the land or conversely who lowered the land, it would usually be at that stage the person raising or lowering that would be responsible for installing and maintaining a retaining wall. Fast forwarding years down the line however if the position is not made clear in your title deeds, it is not always entirely clear what transpired. A surveyor can sometimes assist in this respect if there is dispute.

Joshua :

Some relevant decisions in the courts that give some guidance are Leakey v National Trust where the Trust was held liable for a landslip of soil from its land due to lack of maintenance. In Sedleigh v Callaghan some event occurring on higher land creating conditions which result in damage resulted in damages being awarded to the owner of the lower land.

Joshua :

The general line that is likely to be followed would be one of presumption that the owner of the higher land is responsible for maintenance of the retaining wall to the extent so as to prevent landslip onto the lower land unless the owner of the higher land can demonstrate that the owner of the lower land was the one that lowered his land artificially so as to give rise to the need for a retaining wall whereby the responsibility roles could be reversed. Having said that, there is no specific authority beyond the above that establish this is the way a court must determine such a dispute should it arise.

Joshua :

Is there anything above I can clarify for you?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer :

Thanks Joshua. You say: "If the wall is expressed to be a party structure in your deeds and it may belong to both of you and the joint in terms of responsibility..." Does it state on the deeds whether the wall is a party structure?

You also said "The general line that is likely to be followed would be one of presumption that the owner of the higher land is responsible for maintenance of the retaining wall to the extent so as to prevent landslip onto the lower land". Does this mean that because the cause of the wall to fall is two trees located on my neighbours side, then it is more likely that they are or should be responsible for repair? Or does it mean they could leave it, and wait for it to collapse, and only then could I 'sue'? And one more important thing - can I force through a covenant on them that they are legally obliged to put up a fence between our properties (let us pretend for this question that there is no issue with the wall)? What do I need to force that covenant upon them? Thanks

Joshua :

I cannot see any reference to a party structure which would not be unusual given the age of the deeds. Expressions of party structures are seen more commonly in more modern title deeds rather than older deeds such as these.

Joshua :

If you can demonstrate that the trees on your neighbours side are responsible for the damage to the wall then this would be good evidence in your favour to point to a claim for any land slip that occurs onto your land. It does not follow that you can necessarily force your neighbours to repair the wall unless landslip occurs or unless you can show that the wall is dangerous as a result of the damage caused

Joshua :

If you can demonstrate the wall is dangerous and notwithstanding the above has been damaged and made to be dangerous consequent to damage caused by their trees this may be a basis for a claim.

Joshua :

unfortunately, positive covenants-namely to do something as opposed to negative covenants, namely not to do something-do not automatically carry beyond the original owner or owners of a given property. In other words, positive covenants as a starting point or any enforceable against the original parties to the document and do not bind successors in title. This is distinct to negative covenants which in general terms do pass to subsequent owners and bind them subject to a number of caveats. as a consequence, it is not possible to use a positive covenant to force a neighbour to carry out a particular action or work unless you and he are party to the original document which clearly in this case you are not

Joshua :

boundaries can be a frustrating business into the lack of legal definitive framework. Many people for this reason elect to enter into a deed of mutual rights and obligations in respect of shared boundary structures, particularly where these deal with or expensive to maintain structure such as retaining walls. Obviously this does not help in resolving any disputes because by definition one needs to be able to agree with the other party what terms what is prepared to enter into such a document upon but it may be worth considering for the future you are able to agree maintenance for the structure to avoid disputes in future

Joshua :

Is there anything above I can clarify for you any further?

Joshua :

I should be very grateful if you would kindly take a moment to rate my service to you today. If there is anything else I can help with though please reply back to me

Customer :

Thanks Joshua, are you able to provide a copy of the few earlier exchanges in our conversation. They have disappeared from my end. Thanks

Joshua :

My apologies for the delay in reverting to you. I had to go out on an appointment and have been similarly out this morning on appointments. I will ask customer services to email you a copy of the entire thread if that would be satisfactory?

Joshua :

Is there anything above I can clarify for you any further?

Customer :

Sorry Joshua I have been out for most of the day. Re your previous paragraph, are you saying there is effectively no way I can force my neighbour to fix this wall and erect a fence?

Customer :

Or that the only way is to get them to act is to prove that the wall is in danger of collapse due to the trees on their side?

Joshua :

No problem - likewise for the delay in reverting to you. I have been in yet another meeting.

Joshua :

As above owing to the lack of legislation the position is not clear cut and we only have decisions of the courts principally to go on however the general thrust of such decision is that the owner of the higher land subject as above is liable for maintenance but only to the extent so as to prevent danger or landslip onto the lower land. It is generally not possible in common law to force a higher owner to maintain a wall because it looks untidy or unsightly but only if it is dangerous due to falling or landslip or landslip occurs.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer :

You say "the owner of the higher land...is liable for maintenance but only to the extent so as to prevent danger or landslip onto the lower land." This suggests I will need a professional* to look at the wall and give me a legally binding document that states that "the wall will eventually collapse due to landslip caused by trees on the upper level neighbour's property and therefore it is the upper neighbour's responsibility to remove the cause of the landslip...". *Can you tell me exactly what kind of professional can do this? A chartered surveyor? A structural engineer? Thanks.

Joshua :

Certainly. An expert report can be of assistance in these situations. His report is not a legally binding document however it can be a basis on which to seek neighbour agreement or in default of which a court order.

Joshua :

You have named the precise two professions that can prepare such a report for you. A structural engineer can sometime be more expensive than a surveyor but you can contact 2 or 3 people to obtain quotes for inspection and preparation of a report.

Joshua :

Can I assist you with anything else?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

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