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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 22624
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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A neighbour (housing association tenant) built their patio

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A neighbour (housing association tenant) built their patio against our outside wall well above our damp course. We now have an internal damp problem internally, 12 feet in length in a living room.

I had contact the Housing association who agreed this was their problem. I was told the soil would be moved away from the wall, but instead their contractor painted our external wall with bitumen and back filled with shingle to the wall above the damp course, effectively sealing in the damp. We are concerned now with future damp issues and potential de-valuation on property value.

Do we have any legal recourse? We did not give permission to carry out this type of work and were not given any details of the work that would be carried out. When speaking to the House Association inspector I was under the impression the level would be dropped below the damp course.

The tenant is shortly to have their garden hard lanscaped and had made it clear at the time of inspection that she did not want the level dropped and I feel the course of treatment/solution is a result of her influence on the contractors.

If you could advise what my rights are I would be most grateful.

Mrs S Derry

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So when the patio was put in, did it raise the level of the garden? Has the bitumen paint resolved the problem (I think it unlikely that it would resolve in the long term, even if it did in the short term)?

Customer: replied 4 years ago.

The patio has been at in the property for many years and just I believe the soil was built up to lay the patio higher. The tenant says that the level was that high when they moved in, so this cannot be proved.


The bitumen has only just been painted on the wall and in fact the level is now higher all the way along than it was initially. My guess is that it is at least one foot above the original damp course.


I was told that a trench has been dug, the down pipe has been maintained. A drainage pipe has been laid in to take away water. The soil holding up the patio has been held back approx one slab width from the wall by using slabs on their side. The wall had then been painted and filled with shingle above the damp course.


I did not approve this type of work or give permission to do anything to our wall. My concerns are now long term damp issues developing and problems drying out the existing damp inside our property.

The following points are really important and fundamental to the whole thing.
Is the wall actually on the boundary?
Has the patio been raised? You say you believe the soil was built up to make the patio higher. The tenant says that the level was that high when they moved in. You say it cannot be proved.
Have they changed the layout of the patio, for example, so that water would splash up from the flags where as before, it landed on the ground?
Can you confirm that the damp course has been bridged?is the damp course visible?please confirm that there was no damp before the patio was relayed.
Is this rising damp or penetrating damp? Have you had an expert look at it to establish?
So there appears to be a trench between the patio and the wall which is filled with gravel. Please confirm. Does that go below the original level or is it the same?
The Does that answer the question? Can I help further? Can I answer any specific points?
The court can assist you with this if it gets that far but at the moment, you do not have enough evidence to bring a successful claim.
Customer: replied 4 years ago.
live in a staggered terrace, I'm not sure what is meant by boundary wall. The wall in question is a cavity wall that connects to the the next doors Cavity wall.

The property next door did not have a patio when the neighbour moved in. The patio area was added by the tenant and was cemented to my external wall without a gap and most definitely well above the our damp course.

Over time the patio has moved away the neighbours drain pipe has moved from the drain causing water to flow above our damp course. The sealed patio against the wall I think has prevented water going down into the soil in the past, so the problem was not apparent. But as both the patio and drain had moved the water has eventually soaked the soil underneath and subsequently the bricks above the damp course.

It was very clear on inspection by the Housing Inspector that soil was at least 5 inches above the damp course as he had to dig down to find it (I was with him on inspection).

The Housing Association sent a contractor to the property next door and as you are aware, painted our wall with water proof paint (apparently, informed, not bitumen) almost a foot above our damp course without our permission.

I emailed the Housing Association this morning and they inspected the work carried out. They agreed that the work carried out was not correct and have told me they have dropped to the level to the damp membrane (not DPC) and that they have scrubbed off the paint from our wall. I cannot see the corrective work carried out, so have booked a full inspection by an independent RICS Surveyor to assess damage etc.

Do I have legal recourse. I now have to pay for two surveys and plaster damage in the property. Long term effects have not yet been assessed, as it is unclear that the corrective works will be effective.
Yes you do have legal recourse. If the patio comes up above the damp course,
then the installation is negligent and of the negligence causes damage (damp) you are entitled to the cost of rectifying the damage and also to compel them to reduce the height of the patio below the damp course and also, to be reimbursed the cost of any surveyors report.
If, as you say, the patio is that far above the damp course, I can tell you that no amount of waterproofing is going to stop the Wall becoming damp. Whoever tried that remedy is an idiot. However whoever put the patio in, in the first place, and built it above the damp course is an even bigger idiot.
Once you have the surveyors report, if they will not fix it voluntarily you can make an application to court for an injunction to compel them and you can ask the court to award costs against them.
Because this appears to be a rented property, the housing association is jointly liable (for allowing it to happen) along with the negligent tenant.
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Customer: replied 4 years ago.
Thank you for your response. I think you are correct. By the way the council went into panic when I informed them I had activated a claim with my legal insurance. I have given them a chance to correct three problem initially, but the work is less than adequate and they are fully aware. Thank you for your comments and very prompt responses. I will definitely be using the services again.

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