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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?
Ignore that last mail. I was trying to send a pdf and hit return. Images to come imminently.
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?
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.
Thanks. I presume it is not clear from the deeds which house was built first?
Would you like to continue/
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
I am sorry if you have experienced any technical difficulties. Are you able to read this post?
You should be able to use the paperclip icon to send the pdfs.
I seem to have them. Just looking at them now...
Thanks. I've been through these...
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...
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
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.
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.
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.
Is there anything above I can clarify for you?
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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
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.
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
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.
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
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
Is there anything above I can clarify for you any further?
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
Thanks Joshua, are you able to provide a copy of the few earlier exchanges in our conversation. They have disappeared from my end. Thanks
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?
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?
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?
No problem - likewise for the delay in reverting to you. I have been in yet another meeting.
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.
Does the above answer all your questions or is there anything I can clarify or help with any further?
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.
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.
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.
Can I assist you with anything else?
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