Neighbours foundations on our land - easement required?

Neighbours foundations on our land - easement required?

Postby EThompson » Thu Nov 03, 2016 9:11 am

Our neighbour has recently completed a double storey rear extension. In constructing this their builders built the foundations encroaching 30cm on to our land so that they are flush against the foundations of our previously constructed rear extension. No Party Wall notice was served. The foundations are therefore committing trespass on our land.

We are aware that we may be entitled to seek compensation for the trespass, though this is not a primary concern. We also wondered if we should be demanding that they pay for a deed of easement so that we are formally registering the existence of their foundations on our land. However we are not sure if this is recommended/advised, as we understand it is common that footings will cross boundaries, presumably normally without a deed of easement being in place.

Has anyone come across this issue in practice, guidance gratefully received?
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Re: Neighbours foundations on our land - easement required?

Postby MacadamB53 » Thu Nov 03, 2016 9:44 am

Hi EThompson,

the law allows for this so it is not a trespass and you're unlikely to be awarded compensation if you take it to court.

Kind regards, Mac
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Re: Neighbours foundations on our land - easement required?

Postby Collaborate » Thu Nov 03, 2016 9:49 am

It's a bit too late for you to be considering this. the time for you to take action was when they started digging the foundations on your land.

I presume you've read this bit of the government guidance about the PWA?
The wall will be built wholly at your own expense and you will have to compensate any Adjoining Owner for any damage to his property caused by the building of the wall, or the placing of footings and foundations under his land. There is no right to place “special foundations” (see Appendix A) under his land without his written consent, and the placing of normal projecting foundations can only be done if it is necessary.


Special foundations
These are foundations in which an assemblage of beams or rods is employed for the purpose of distributing any load.


Not sure at all about trespass, given that under s1(6) of the PWA the neighbour has the following right:
Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall have the right, at any time in the period which—
(a)begins one month after the day on which the notice mentioned in the subsection concerned was served, and
(b)ends twelve months after that day,to place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.

So your damages are nil, given that there is a legal way in which the neighbour could have placed the footings under your land.

The Act contains no enforcement method if a developer fails to follow the PWA procedure - a major flaw in the Act.
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Re: Neighbours foundations on our land - easement required?

Postby arborlad » Thu Nov 03, 2016 10:29 am

EThompson wrote:Our neighbour has recently completed a double storey rear extension. In constructing this their builders built the foundations encroaching 30cm on to our land so that they are flush against the foundations of our previously constructed rear extension.




Not sure of the timescale here, but an opportunity was missed for both of you to have had a larger extension, share some of the costs and not lose the use of some of your land.
arborlad

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Re: Neighbours foundations on our land - easement required?

Postby ukmicky » Sat Nov 05, 2016 7:37 pm

Technically it is a trespass because the right to lay foundations under your neighbours land is only legally acquired once the correct partywall notice is served and the required waiting period is observed given you time to object.

In theory as there is no such thing as a retrospective party wall notice ( you and your surveyor however can agree to deal with it retrospectively but it's your choice )which they can send to make the laying of the foundations on your land legal you have the right to gain ask a court for an injunction to get the foundations removed.

How a court would deal with it I can't say but they could either order the removal of the trespass or award compensation.


Even if they had correctly used the party wall act prior to the build you could have refused. The party wall act only allows you to lay footings under your neighbours land if it is nessesary. There are many types of foundation designs for extensions that do not reguire them to extend out into a neighbours property.

Your neighbours have screwed up on this one and need to take your complaint seriously
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Neighbours foundations on our land - easement required?

Postby ParallelLines » Tue Nov 22, 2016 12:05 pm

In theory I think it is good practice building wise to do this and you may infact benefit from the extra foundation. However please check that with a builder!

To claim damages you have to have suffered loss and I don't know if you have seeing as it could be a benefit. However if drainage or cables have been compromised then there would be a loss.

I would check the building side of things first.
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Re: Neighbours foundations on our land - easement required?

Postby jonahinoz » Thu Dec 29, 2016 6:11 pm

To claim damages you have to have suffered loss and I don't know if you have seeing as it could be a benefit.

Hi,

If a neighbour laid his foundations under my garden, I would ask myself if that would prevent me building something right up to my boundary. ??? Would I have to lay my foundations under his? Or could I use the bit that projects from under his wall, to build my wall on, assuming it was wide enough.

Asking because I don't know. Surely I can't be the first to have thought of this, or actually had to deal with it ... but academic question.

John W
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