Claim against new owner?

[awawaw]

Hi everyone

I will try and make this not overly detailed and to the point.

I am an adjoining owner to a completed newly built development. As part of the development, deep excevation work was carried out (under the party wall act) near my boundary and as a result, the construction of the Retaining Wall the developer have failed to take reasonable care properly to backfill the void between the Retaining Wall and the land at the boundary between the properties. A structural engineer has confirmed this.

Problem is that the developer (who liqudated his company) sold the freehold building/land to a new owner. So is there a cause of action against the new owner?.

I am not sure what the stance is on ther Party Wall Act, I understand that the Party Wall Awards are serverd on owners and not properties, so in this case the Party Wall is not transferrable, unless of course I can use section 10(4) to appoint a new surveyor further building owner?

Alternatively, if I can claim under the Right to Support Easement (https://www.designingbuildings.co.uk/wiki/Right_of_support), damage to the retaining wall and lack of backfill. There are also a number of other points noted by the structural engineer such as guttering and drainage to prevent further backfill being washed away by excess surface water.

These defects pose risks to the future stability of my property so it is rather concerning.

Your input is much appreciated.

Thanks

 

[Mottie]

Could be complicated. Could you not go through your house insurance and let them worry about who is at fault?

 

[^woody^]

What loss have you actually incurred? You can't claim for "could do's and maybes".

I suspect you should be contacting your insurer.

 

[awawaw]

What loss have you actually incurred? You can't claim for "could do's and maybes".

I am claim for loss of support to my property

Easement of support as against the adjoining land/property by prescription under s.2, Prescription Act 1832 or by lost modern grant ("the Right of Support").

The construction of the Retaining Wall and faliure to backfill the void between the Retaining Wall and the land at the boundary between the properties. The freeholder and or RTM has not taken reasonable care to install sufficient guttering and drainage to prevent such backfill as has been installed being washed away by excess surface water.

 

[mrrusty]

TBH it will probably cost you less to back fill it yourself (if I understand this is your side of the retaining wall) than it will to litigate. Should you have to do this? - no. Might it be the pragmatic approach? yes.

 

[awawaw]

TBH it will probably cost you less to back fill it yourself (if I understand this is your side of the retaining wall) than it will to litigate. Should you have to do this? - no. Might it be the pragmatic approach? yes.

Unfortunately it is not a case of backfilling with sand and cement. And the void are is on the building owners side. The bill runs into tens of thousands.

My orignal question though is whether the new building owner is liable?

Thanks

 

[freddiemercurystwin]

Here's the thing with newbie forum users, get people on your side and pander to any questions they may have and expect to have to elaborate a bit rather than insisting others only answer specific questions .....

 

[blup]

Did the surveyors get it wrong or did they get it right and were the works not carried out right?

You have to hope the neighbours insurance will cover any future problems

Blup

 

[mrrusty]

You have to hope the neighbours insurance will cover any future problems

They won't. To make a successful claim for damages there has to be proven negligence. The neighbour didn't do the work, or commission the builders and surveyors, so a claim for negligence against them for which they might be insured, will likely be unsuccessful. As @^woody^ said above, you also can't make any claim for what might happen in the future.

IMHO if any claim went through insurance, it will be you claiming on your insurance. Your insurers legal team, if they think there is a viable way of offsetting their liability, would surely try it, but I suspect they wouldn't

I am not sure if there is any recourse under the PWA where the original party is no longer in existence. I suggest you take advice from a legal adviser specialist in this field.

 

[^woody^]

Easement of support as against the adjoining land/property by prescription under s.2, Prescription Act 1832 or by lost modern grant ("the Right of Support").

The construction of the Retaining Wall and faliure to backfill the void between the Retaining Wall and the land at the boundary between the properties. The freeholder and or RTM has not taken reasonable care to install sufficient guttering and drainage to prevent such backfill as has been installed being washed away by excess surface water.

If your house or land or whatever it's still standing, then you have not lost any easement or support.

Be wary of reading any law from 1832 and thinking "that's it, got 'em"

Also add "in my opinion" when claiming that anyone had not taken reasonable care - as it's not up to the claimant, or their advisers to define what is reasonable. More often than not it's a tenuous claim.

 

[^woody^]

My orignal question though is whether the new building owner is liable?

The question should be around whether the new land owner (not building owner) may be responsible, as that is different to being liable.

And the answer is maybe, maybe not. You or your advisors need to do some metaphorical digging, and determine what duty is owed to you.

 

[blup]

They won't. To make a successful claim for damages there has to be proven negligence. The neighbour didn't do the work, or commission the builders and surveyors, so a claim for negligence against them for which they might be insured, will likely be unsuccessful.

Is it about the current owners' negligence when they purchased ignorant of the (potential) issues. More of a subsidence type claim unless a claim can be made against the PI of the surveyor who signed off the works.

As @^woody^ said above, you also can't make any claim for what might happen in the future.

The claim would be made in the future when actual damage had occurred. Pragmatically it must be in the insurers interests to nip something like this in the bud, especially if, as the OP implies, damage may be imminent. A bit like removing a tree that leans after storm damage but hasn't yet fallen on the house.

IMHO if any claim went through insurance, it will be you claiming on your insurance. Your insurers legal team, if they think there is a viable way of offsetting their liability, would surely try it, but I suspect they wouldn't

The neighbour would be making the claim and paying the OP. It would go through the OP's insurance if they have cover.

I am not sure if there is any recourse under the PWA where the original party is no longer in existence. I suggest you take advice from a legal adviser specialist in this field.

Looks like there is a loophole in the legislation unless the developer's advisers have some liability which the OP can claim against.

Blup

 

[jeds]

On change of ownership of a property (Change of building owner, that is - different for change of adjoining owner) a party wall award ceases to have legal effect and new notices or awards should be issued. This effectively means the existing PWA is dead and won't help you. However, this probably doesn't make that much difference to you and may even be an advantage.

If your property is left in a precarious state, you should ask your new neighbour to remedy the issues. Your new neighbour inherits any situation from the previous owner so it would be their responsibility. If they do not remedy the situation then you will have to take action to seek remedy/compensation. This is no different to having an outstanding PWA in place. Of course you must be sure that your claim is reasonable and necessary and you will have to cover the cost of action with the view to recovering costs later if you are successful, so tread carefully. All of this is no different to having a PWA in place except with no PWA the remedy/compensation awarded by a court becomes unlimited.

 

[blup]

Negligence is one route, loss of easement of support/nuisance another. There are plenty of specialist no win no fee lawyers about who would look at this if the insurance route gets nowhere.

Blup

 

[awawaw]

Thanks guys. Some great points raised and an interesting read with some interesting views.

I will seek legal advice, will be covered with Legal Protection under Property Disputes and will let you know how it goes..

Thanks again