Adverse possession of damaged retaining wall?

Adverse possession of damaged retaining wall?

Postby Dolbette » Wed Jul 19, 2017 6:42 pm

This is a complicated issue, but will try to keep it as short as possible.
We have a wall running the length of our garden, which is in a very poor state of repair. We live in a mid terraced house and have done so for over ten years, the wall is very old. We always thought the wall was our neighbours' as on our Title Deeds, it states that the boundary is theirs. However, recently when we started to look into it (the wall is dangerous and needs removing, we have children to worry about in the garden), we found it's in line with our roofline, which would imply that it is on our land (I contacted a chartered surveyor by phone to ask his advice and he said if it's in line with our roof, it's our wall). The big problem is that it is not a simple case of removing the wall and replacing with a modern equivalent, as it is retaining about three feet of the neighbours' garden. Before we moved in, they raised the level of their garden (land was originally about a foot higher than ours), but the wall was not meant to retain land, which is what has caused it to fall into a serious state of disrepair.
So, we contacted our insurance company, who put us in touch with their solicitor, who told us that we have grounds to sue against the neighbours as the wall is on our land and they are the ones who have (albeit inadvertently) damaged it. We didn't want it to resort to that as we would like to remain amicable, but verbal communications soon broke down, so we decided to write them a matter of fact (and in no way rude) letter to explain the situation. We asked that they remove the land against our wall to its base so that we could replace it with a fence and told them they were welcome to erect their own structure to retain their land, but that we are not responsible for it. They have today served us with a notice that we are to appear in court next week, as they are serving an injunction against us to not remove the wall, they say it is theirs, as per their Deeds. Our Deeds do show that the boundary is their responsibility, BUT the fact remains that the wall is on our land.
So tomorrow I shall be contacting the solicitor associated with our insurance company, but I am now stressing over what the outcome of this is going to be? Surely they couldn't serve an injunction on us if their solicitor thought they didn't have a chance of winning? Will we have to pay court fees?
At the end of the day, the wall is dangerous, needs removing and replacing for the safety of my children. We were going to erect a band new fence, which they would benefit from (albeit not to retain their land) and they are throwing their toys out of the pram because we asked them to remove their land from the wall, so it could be taken down.
Any input or advice on this would be very much appreciated. Sorry for the long post, didn't know how to shorten it anymore :?
Dolbette
 
Posts: 10
Joined: Sun Jun 25, 2017 9:04 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Adverse possession of damaged retaining wall?

Postby MacadamB53 » Wed Jul 19, 2017 7:03 pm

Hi Dolbette,

BUT the fact remains that the wall is on our land.

the fact the wall runs in line with your roof line would be a reasonable means of ascertaining ownership due to lack of evidence, but there is evidence - concrete, black and white, irrefutable evidence - the deed.

if the wall is extant from when the properties were divided then the wall is unquestionably on their land and the parties to the deed created a kink along the boundary - by accident or design it matters not.

you're on exceptionally sticky ground if you have no evidence that the wall has since been replaced AND that the new wall has been built along a different line.

have your sols had sight of all the evidence or did you write the letter off the back of informal discussions?

Kind regards, Mac
MacadamB53
 
Posts: 5969
Joined: Mon Dec 10, 2012 12:13 am

Re: Adverse possession of damaged retaining wall?

Postby arborlad » Wed Jul 19, 2017 7:10 pm

Dolbette wrote: They have today served us with a notice that we are to appear in court next week, :?




Not sure what the rest of the timeline is here, but this is a remarkably short period of time without any sort of due process, also the courts like to see that there has at least been an attempt at mediation before it gets to them.
arborlad

smile...it confuses people
arborlad
 
Posts: 7358
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Adverse possession of damaged retaining wall?

Postby Dolbette » Wed Jul 19, 2017 7:44 pm

the fact the wall runs in line with your roof line would be a reasonable means of ascertaining ownership due to lack of evidence, but there is evidence - concrete, black and white, irrefutable evidence - the deed.

Apologies, I might have muddled up my words. The Deed states the boundary line is theirs. There is nothing in the Deed to state who built the wall - all we know is, it's very old and was there before either of us moved in to our properties. If the wall is in line with our roof, it is on our land, surely. If their wall was mistakenly built on our land, then doesn't it become ours via adverse possession? I know that adverse possession relates to land and not walls, but the land the wall is on is ours... so... back to my original point. Since our houses are joined, I'm struggling to see that part of their land is inside our roofline.

Thanks for any input, I really do appreciate it.
Dolbette
 
Posts: 10
Joined: Sun Jun 25, 2017 9:04 pm

Re: Adverse possession of damaged retaining wall?

Postby MacadamB53 » Wed Jul 19, 2017 8:10 pm

Hi Dolbette,

If the wall is in line with our roof, it is on our land, surely.

not necessarily, it merely suggests that may be the case if you have nothing else to go on - but you do...

The Deed states the boundary line is theirs

I suspect not - boundaries are not owned, whereas boundary features are.

it is almost certainly the case that the wording in the deed articulates that the wall was included in the sale of next door when the terrace was divided up.

Kind regards, Mac
MacadamB53
 
Posts: 5969
Joined: Mon Dec 10, 2012 12:13 am

Re: Adverse possession of damaged retaining wall?

Postby Roblewis » Wed Jul 19, 2017 8:12 pm

He will have to demonstrate that the wall is on his land and your defence is the advice given by a surveyor. Offer a joint survey but cross petition also that the neighbour has damaged the wall with the overburden from his soil landscaping. You do need to appear reasonable but make clear that the matter needs resolution not simply an injunction to stop any actions. If it is his wall then the cost of repair will fall on him. TALK TO YOUR INSURANCE SOLICITOR TOMORROW.
Roblewis
 
Posts: 1762
Joined: Mon Jan 24, 2011 12:41 pm

Re: Adverse possession of damaged retaining wall?

Postby Dolbette » Wed Jul 19, 2017 8:42 pm

At the end of the day, if it is their wall, I don't really mind. What my major issue is, is that it's dangerous. If we go to court and they do prove it's theirs (I was told by the chartered surveyor that "boundary line" and "boundary feature" are two separate things), then the pictures we submit as evidence will prove that it needs to be replaced ASAP as it's falling apart. So all they've done is proved that they are responsible and liable for the costs of replacing it with a safe boundary feature, strong enough to support their land?
Dolbette
 
Posts: 10
Joined: Sun Jun 25, 2017 9:04 pm

Re: Adverse possession of damaged retaining wall?

Postby ukmicky » Wed Jul 19, 2017 11:34 pm

So all they've done is proved that they are responsible and liable for the costs of replacing it with a safe boundary feature, strong enough to support their land?



In the end you get a result either way, provided your belief that the wall is dangerous is fact. If it is fact however you will then have to take them to court if they fail to take action to remove the danger once they've proved they own the wall. If it not a danger you will have to wait until stuff start falling into your garden before you can sue them for nuisance .

If you do prove its yours they may claim an easement. If they do you can force them through the courts to pay towards its repair if they wish to retain its support. .

Your best bet may be to argue that the deeds only confirm ownership of the original wall and as its impossible to prove its the original wall ,it must at the minimum be a party wall as its on your property by some degree. If you win the argument you get to repair it even if they don't want it repaired and you get to charge them a proportion of the cost. However as its holding up their land you would have an exceptionally good case to legally to argue that 75 percent(probably more) of the cost of repair or replacement should be borne by them.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4514
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Adverse possession of damaged retaining wall?

Postby Eliza » Thu Jul 20, 2017 2:46 pm

Re whose land is being "held up" by a retaining wall - isn't it the case that whichever of the two houses was built first has the right of it? That being that if first house to be built was fine of itself and the retaining wall is necessary for the benefit of second house on the scene, then it's second house on the scene that does the paying out for maintenance of retaining wall?
Apologies for not giving exact personal details in my posts - you never know who is reading....
Eliza
 
Posts: 298
Joined: Sun Jun 01, 2014 6:28 am

Re: Adverse possession of damaged retaining wall?

Postby despair » Thu Jul 20, 2017 5:42 pm

1) they had no right to raise their land level without a proper retaining wall and maybe they even needed planning

2) If the wall is dangerous the Local Council Building Officer can declare that and put a section ??? on it forcing repairs

have you involved the Local Council
despair
 
Posts: 16026
Joined: Mon Mar 14, 2005 8:07 am

Re: Adverse possession of damaged retaining wall?

Postby SwitchRich » Fri Jul 21, 2017 9:18 am

Any chance of some pictures of this wall? Obviously if you are going to claim it is unsafe then you will need to prove this anyhow. So if you can post a few pics you would at least get the opinion of this forum.
Does it look like this for instance?

http://c8.alamy.com/comp/CW9GF5/dangero ... CW9GF5.jpg
SwitchRich
 
Posts: 90
Joined: Wed Feb 24, 2016 11:34 am

Re: Adverse possession of damaged retaining wall?

Postby Dolbette » Sun Jul 23, 2017 10:37 pm

Sorry for the delay in responding, all my time has been consumed with preparing for court on Tuesday! I do have photos, tried to upload but they're too big, so I need to take time to resize them. It doesn't look like that photo, but is buldging out towards the bottom where the bulk of the land is... the mortar inbetween bricks is no longer present and appears to be held together largely by roots of the ivy and purple rockery pants, both of which have come from the neighbours side.

Their house was indeed built first, however, at the time it doesn't appear that the land was significantly higher, their house is 3 bricks taller than ours which follows through to the back, where the dirt track that runs along the back of the entire street is also three bricks higher than our garden. The street is only on a very gentle incline (not even decernable when walking along it). The neighbour has admitted herself that she had the garden level raised before we moved in. There isn't anything in the deeds that mentions rentention of land, merely that there has to be a wall on that boundary, no less than 4ft 6in tall and 9in wide, to be forever maintained by the person who's side the 'T' is on (theirs, as per the plan included with the deeds).

The neighbour has also claimed in their injunction notice, that we damaged the wall ourselves by removal of our outhouse. Said outhouse was 12ft away from the wall and in no way connected to it.

We've got 72 photos, dating from when we moved in (showing no outhouse) and showing the decline of the wall over the years and that said climbing plants are hers - even though she claims otherwise.

I just can't help but feel saddened by this whole thing. It never needed to get this far, as at the end of the day, all we wanted was an amicable solution and a safe garden.
Dolbette
 
Posts: 10
Joined: Sun Jun 25, 2017 9:04 pm

Re: Adverse possession of damaged retaining wall?

Postby arborlad » Mon Jul 24, 2017 3:26 pm

Dolbette wrote:Their house was indeed built first, .




That's unusual for a terraced house, can you explain how it came about?.......how old are the properties?
arborlad

smile...it confuses people
arborlad
 
Posts: 7358
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Adverse possession of damaged retaining wall?

Postby MacadamB53 » Mon Jul 24, 2017 4:08 pm

arborlad wrote:
Dolbette wrote:Their house was indeed built first, .




That's unusual for a terraced house, can you explain how it came about?.......how old are the properties?
not that unusual - development done piecemeal was not uncommon 100-150 years ago.
MacadamB53
 
Posts: 5969
Joined: Mon Dec 10, 2012 12:13 am

Re: Adverse possession of damaged retaining wall?

Postby despair » Mon Jul 24, 2017 5:59 pm

"The neighbour has admitted they had the garden raised before we moved in "

That means she is liable 100%
despair
 
Posts: 16026
Joined: Mon Mar 14, 2005 8:07 am

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Boundaries

Who is online

Users browsing this forum: No registered users and 3 guests