Retaining wall slipping / Neighbour nuisance

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retaininghell
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Joined: Thu Dec 30, 2021 11:38 am

Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

Can someone please help.

I live on lower land and neighbour on higher land. There is a retaining wall between us.
Around 2014 (before we acquired house) neighbour installed patio, removed trees/shrubs and installed fence (all in his side of property) - The workmanship is crap. There is an archived Zoopla link showing trees/roots are still visible under patio tiles.
We acquired house in 2017 and in 2019 I warned him about retaining wall crack directly behind an installed fence post. Situation has gotten worse and retaining wall broken and inside my boundary. If it weren't for my raised bed (gardening purposes) a 4m stretch of retaining wall will have fallen down.

Based on them sorting their sinking patio, I offered to pay 50% of retaining wall but neighbour was awkward in wanting new retaining wall to sit 100% inside my boundary. My builder refused to do works because of neighbours penny-pinching and he warned me that their patio is sinking. I went down to 30% when I caught wind that his pleading of poverty during covid was a lie. He's brought another property for over 800k and plans to let the house next to me. I've been saving up to contribute but the neighbour's stalling has now created a nuisance.

Neighbour now saying he can't afford to contribute and wall is my responsibility. This is because of the t-marks on my side and the following covenant:

"The Transferee shall at all times hereafter maintain and keep in good repair and condition the post and wire fences erected by the Transferor along the boundaries of the said land on the sides marked 'T' on the plan attached hereto within the boundaries and shall within six months from the date hereof plant and forever maintain a hedge of suitable evergreen shrubs or beech along such boundaries."
[There is then a height restriction of the hedge]

The wire fence and hedges on my side weren't there when we brought the house. Cousin-solicitor mentioned that only Transferor can enforce the covenant and neighbour can't force ownership of wall on us. We feel a bit powerless here because our only option seems to be a nuisance claim so lawyers will be the ones making money with letters etc.

Does neighbours argument that we are responsible for retaining wall hold up?
Is the covenant positive or impossible for neighbour to enforce?
Is neighbour responsible/owner of wall?
(Concern is that he'll raise to boundary dispute, deny ownership of wall when it operates as a boundary).
Is statutory nuisance claim a sensible pathway to take?

Thanks for reading.
IdefixUK
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Re: Retaining wall slipping / Neighbour nuisance

Post by IdefixUK »

Hello retaininghell,

I suppose that firstly you need to establish the position of the boundary between you.

You posted this.

"We acquired house in 2017 and in 2019 I warned him about retaining wall crack directly behind an installed fence post
"

Could this be a remnant of the post and wire fence mentioned in the covenant. If so it could indicate the position of the boundary between the properties. Is this post on the lower land?

Please let us know the height difference between the properties, as, if this is large, there would seem to me to be no point in someone erecting a post and wire fence at the base of a significant wall.

Regards.
MacadamB53
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Re: Retaining wall slipping / Neighbour nuisance

Post by MacadamB53 »

retaininghell wrote: Thu Dec 30, 2021 11:47 am[1]Does neighbours argument that we are responsible for retaining wall hold up?

[2]Is the covenant positive or impossible for neighbour to enforce?

[3]Is neighbour responsible/owner of wall?

[4]Is statutory nuisance claim a sensible pathway to take?
[1] yes - his land comes with a right to be supported by yours (the wall is yours)

[2] it is not enforceable against you (it didn’t carry from original party after they sold and is pretty much meaningless now)

[3] no

[4] what nuisance?
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

I attach picture of fence post neighbour installed on their higher land years ago - the neighbour did their own thing and messed it up.
I also attach status of wall with yellow line showing where me/neighbour verbally agreed on boundary line. Neighbour's land slipping over too.

Please explain to a layman why I 'own the wall'?

-It's retaining higher (neighbours) wall and I thought there was common law assumption of higher land being responsible.
-Covenant not enforceable and that is only mention of 'fence'
-Even if I stump up, neighbours patio is sinking and I'll be back to square one - Is assumption that neighbour can do what they want to their land and I pay for consequences?

Retaining wall sits inside neighbours boundary. I attach another picture and it shows brickwork from neighbours side in line with retaining wall.

I'm more confused than before
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

IdefixUK wrote: Thu Dec 30, 2021 12:34 pm Hello retaininghell,

I suppose that firstly you need to establish the position of the boundary between you.

You posted this.

"We acquired house in 2017 and in 2019 I warned him about retaining wall crack directly behind an installed fence post
"

Could this be a remnant of the post and wire fence mentioned in the covenant. If so it could indicate the position of the boundary between the properties. Is this post on the lower land?

Please let us know the height difference between the properties, as, if this is large, there would seem to me to be no point in someone erecting a post and wire fence at the base of a significant wall.

Regards.
Height difference is about 80cm. If you look at first picture the retaining wall has a square hole. They are consistently running through the retaining wall so believe they were used to prop-up wire fence. There are weep-holes lower down as well but they are circular.
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

MacadamB53 wrote: Thu Dec 30, 2021 1:14 pm
retaininghell wrote: Thu Dec 30, 2021 11:47 am[1]Does neighbours argument that we are responsible for retaining wall hold up?

[2]Is the covenant positive or impossible for neighbour to enforce?

[3]Is neighbour responsible/owner of wall?

[4]Is statutory nuisance claim a sensible pathway to take?
[1] yes - his land comes with a right to be supported by yours (the wall is yours)

[2] it is not enforceable against you (it didn’t carry from original party after they sold and is pretty much meaningless now)

[3] no

[4] what nuisance?
Thanks for reply. First picture I attached shows two brick walls adjacent to each other sandwiched by a thin bit of mortar (verbally agreed boundary). Brickwork on left hand side is neighbours. My brick wall is right hand side.
If retaining wall is mine, isn't boundary left-most of the retaining wall?
MacadamB53
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Re: Retaining wall slipping / Neighbour nuisance

Post by MacadamB53 »

hi retaininghell,

thanks for sharing the pics - they are all rather too close imho to be of much use to the forum.

at the time of the original partitioning of the two, the vendor marked the shared boundary in a plan and included wording in the deed outlining that the buyer was to maintain any fences and hedges along the boundary - which implies said fences and hedges were included in the sale.

assuming those fence and hedges stood in line with the retaining wall, it’s reasonable to assume the wall was also included in the sale.

kind regards, Mac
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

MacadamB53 wrote: Thu Dec 30, 2021 2:03 pm hi retaininghell,

thanks for sharing the pics - they are all rather too close imho to be of much use to the forum.

at the time of the original partitioning of the two, the vendor marked the shared boundary in a plan and included wording in the deed outlining that the buyer was to maintain any fences and hedges along the boundary - which implies said fences and hedges were included in the sale.

assuming those fence and hedges stood in line with the retaining wall, it’s reasonable to assume the wall was also included in the sale.

kind regards, Mac
Hi,
Covenant states that original owner is to plant/grow hedges within 6 months. Wouldn't that be one side of retaining wall or another.

What about duty of support on neighbours side? Retaining wall is unable to support his patio.
wtc
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Re: Retaining wall slipping / Neighbour nuisance

Post by wtc »

Mac - what is it that clearly makes the wall the property of the OP? If the OP is the owner, then there is the right of support, but is that definitely the case?

It is possible that the neighbour, or their predecessor in title, raised their land since the transfers, putting in the retaining wall on their side. In which case, the wall would be owned by the neighbour. Without knowing the history, I don't think we can't be sure of ownership.

Alternativelyy, if the transferor in the context of the deed was not the owner of the neighbour's land at the time of the transfer, then there would be no need to mention anything on the neighbour's side.
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

wtc wrote: Thu Dec 30, 2021 6:09 pm Mac - what is it that clearly makes the wall the property of the OP? If the OP is the owner, then there is the right of support, but is that definitely the case?

It is possible that the neighbour, or their predecessor in title, raised their land since the transfers, putting in the retaining wall on their side. In which case, the wall would be owned by the neighbour. Without knowing the history, I don't think we can't be sure of ownership.

Alternativelyy, if the transferor in the context of the deed was not the owner of the neighbour's land at the time of the transfer, then there would be no need to mention anything on the neighbour's side.
There is no magic bullet of proof that I am owner of retaining wall in deeds. Me/neighbour are looking at physical evidence and vague deeds. He's sticking with the covenant of a wire fence meaning I must own the retaining wall as well.
Verbally I agreed with neighbour where boundary line was. This line mirrors other houses on road and puts retaining wall in neighbours property - does physical evidence of retaining wall being on neighbours side mean anything?

Also, doesn't the neighbour also have a right of support to the retaining wall when they install a patio at their elevated height (and not use party wall act)?
A surveyor has said it is slipping over so I can't comprehend that I need to enhance support of a retaining wall when neighbours decided to install a patio with crappy drainage and crack the retaining wall when builders were hammering down a wooden fence post inside their property.

WTC - The Transferor was an Estate, all properties on estate have T-marks on right hand side even though Estate on a hill. There is no mention of higher/lower land.
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

Stand corrected- what I am getting at is my neighbour and him having a ‘measured duty of care’ when he did his works in 2014
ukmicky
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Re: Retaining wall slipping / Neighbour nuisance

Post by ukmicky »

If it’s your wall you don’t have to maintain it and you legally do not have to take any positive action in order to prevent his land slipping into yours but you can’t also perform a positive action that removes his support.

He however legally must prevent his land slipping into yours as that would be an actionable nuisance ,which means he has no choice at some stage in order to prevent that from happening repair the wall.

If he wishes to continue using the wall as a way to retain his land he legally he must also prevent the collapse of the wall into yours due to the lateral pressure exerted onto it from his land or again he will be causing a nuisance but a court would probable give him the option of repairing it or stop using it.

So in reality he legally has no choice but to maintain it no matter who owns it ,if he wishes to continue using it to support his land
Any information provided is not legal advice and you are advised to gain a professional opinion
retaininghell
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Re: Retaining wall slipping / Neighbour nuisance

Post by retaininghell »

Chartered Surveyor reported that neighbour caused fracture in wall and placed extra burden on wall.
Chartered Surveyor also reported that retaining wall sits inside neighbours boundary when looking at physical evidence.

Neighbour still arguing that retaining wall must be mine because of deeds (but my argument is that deeds don't refer to higher/lower land and there are no concrete posts in my boundary any more). Also, if I own the wall, the boundary line stops being a straight line as I would own the thickness of the concrete wall.

Rather than going to court, what if I just remove the raised bed and replace it with my own wall (butting against the wall in question)?
Specifically, what if the neighbours fence falls down during the build?
I also expect 5m of concrete retaining wall to collapse.

Thanks
CherryBlack
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Re: Retaining wall slipping / Neighbour nuisance

Post by CherryBlack »

Based on what you have told us, RH; (a) the ground is higher on your neighbour's side (apart, possibly, from a raised flowerbed you have placed along your boundary?, but that does not represent the overall 'ground' level in any case), (b) the wall is pretty clearly one designed for 'retaining' - ie it is low, sturdy, not decorative, not screening, etc), and (c) the wall is almost certainly on your neighbour's land, which is good news as that really helps to demonstrate its ownership, then this would appear to be cut and dried.

Do you have Legal Protection on your house insurance? If 'yes', then great, and call them up for advice. Based on what they tell you, you may then apply the required pressure to legally oblige this person to rebuild the wall.

What NOT to do: Do NOT remove your flowerbed; don't give them any reason to muddy the case. Do NOT offer to contribute to the wall; your initial kind gesture was based on your belief that they were hard up, and was not an acceptance of joint responsibility. However, as you understand they have now bought a second property for £800k, it is clear they do not require financial assistance.

In essence, what the process will now involve will, I guess, be either 'Putting them on notice' of the damage that could be caused to your land by any further movement or collapse of this wall, in which case you then just sit and wait for this to happen, and meanwhile get on with your life. Or it'll be a 'letter before action' outlining that they NEED to sort the wall, and if they do not, you will take legal action against them to do so. BUT, be guided by your LP.

Oh, another 'what NOT to do'; do NOT trust this neighbour one single, crumbling inch. Based on the advice you are given by your LP team, you 'act' following only these guidelines, and you do not become distracted by anything this neighbour says. It's their wall. It's a retaining wall. Their ground is higher than yours. They have responsibility for it. The ground is moving, and will cause continued damage to your side. END. OF.

No need - at least at this stage - to mention things like patios and quality of work and stuff; that can be brought up as further mitigation should this actually go 'legal'. At the moment, tho', this is a simple case of a retaining wall that's failing, and for which your neighbour almost certainly has full responsibility. Proceed on that basis.

Oh, if you don't have LP - tsk tsk - then you may need to seek advice elsewhere. But, based on what you've said, this is not a complex issue, and many 'no win no fee' solicitors should hopefully be willing to act on it for you.

This neighbour most likely just needs a sobering kick up the arris (see what I did there?!), and would be very foolish to allow the initial and official legal threat to be ignored.
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