Failure to get a third part wall agreement.

[Superandy]

This is a fairly long story so please bear with me.

My wife and I are having a loft conversion done on a 3 bed semi, due to an oversight I failed to get a 3rd Party Wall Agreement, however the work is now complete apart from decorating and installing the bathroom suite etc. The neighbour has pointed out that the dormer has come over their side of the roof. On closer inspection the structural wall is astride the wall their side but the tiles, fascia boards and soffits are over their side of the roof by 14cms (this is the total width of all the stuff attached to the outside of the party wall).

Apparently to bringing in the dormer is a huge job which the builder is not going to do without a fight.

Ownership of the adjoining house is shared however the husband no longer lives there. The wife is happy to sign an agreement that we can build on the party wall, but at the moment the husband is adamant he won’t sign the agreement. I guess he is not living there so doesn’t care about maintaining any relationship with us.

The plans were drawn up by the builders daughter (an architect different company) were submitted to the council and they approved the plans. I didn’t realise the dormer would come over their side of the roof even just the tiles etc, but the builder says that the project was done to the plans.
I really want to know what the situation is from here. Can the neighbour force me to remove the dormer so that it is fully within my side of the partition?

Even if they can’t force us to demolish and rebuilt the dormer, are we going to get problems trying to re-mortgage the house or trying when we come to sell?

Any advice is gratefully received. My wife is 7 months pregnant and is really upset and stressed by all this so I want to get it resolved as soon as possible.

 

[tony1851]

If the dormer facing on the cheek goes over the centreline of the party wall, then strictly speaking it has trespassed.

Builders often do it this way because it is easy to build the studwork up off your half of the party wall, and then apply the sheathing, felting, battens and tiles over the studs. By the time he's finished, it will most likely have gone over the centreline of the wall.

But things may not be as bad as you suspect, and failure to get a PWA agreement is irrelevant now. Has the neighbour's ex actually asked you to remove it, or is it just that her man refuses to sign an agreement?

If the neighbour decides to take action to have it removed, they would have to start proceedings in the County Court for an injunction to have the cheek cut back. But an injunction is always at the discretion of the court, and a judge would have to consider if the loss to the neighbour of a bit of space on their roof is worth more than the cost to you of re-building that side of the dormer. Obviously it wouldn't and any judge would see that the neighbour is taking action just on a principle. If there is found to be a technical trespass, the neighbour would probably just get awarded nominal damages (often £1) plus costs, which would not be very much.

My guess is that nothing formal will happen - perhaps a few snotty threatening letters from your neighbour's ex, maybe even a solicitor's letter, but don't loose sleep on it. The neighbours appear to have their own problems without taking this on. Refusing to sign a letter is a million miles from taking legal action.

 

[Superandy]

Thanks Tony. They haven't asked me to remove it yet although the lady next door says that her husband is saying we should get them to take it down.

 

[tony1851]

Have you actually checked the plans to make sure the cheek is shown as being built off the party wall? Or are you taking the builder's word for it?
If his daughter has done the plans, he will be on the defensive.

 

[freddiemercurystwin]

Builders always say they followed the plans!

 

[Superandy]

You may have a point Freddy and Tony I have just double checked the plans and the dormer is fully within our side of the partition.

I guess this means if it comes to it he has to resolve the problem?

 

[Superandy]

I am also quite worried lawyers will pick up a lack or PWA or agreement in any future house sale.

 

[jeds]

What you are dealing with here is a matter of trespass and has nothing to do with the PWA. The PWA cannot be applied retrospectively so once works are complete it is pointless pursuing signatures or documentation. To remedy the trespass the adjoining owner would need to take action. I would worry about that if and when that happens.

 

[noseall]

Irrespective of what is drawn, the builder should have queried the location of the proposed party wall position if it were showing a boundary breach.

We have on several occasions looked at ways of appeasing both parties whereby there is some encroachment to the extent where the extension is either reduced in size or modified.

On one particular job (in Coven, Staffs) I noticed that the garden boundaries did not appear to come off the building square, rather they were all squint which was confirmed with a visit to Google. This meant that the further the extension came away from the building the more it encroached on the neighbours land.

When I phoned the architect and told him, he said oh just crack on. I refused and stated that I would be accountable and that I would have the phone call witnessed and state that he was neglecting his 'duty of care'. He soon came out with his wellies and his brolly. Bless!

 

[Superandy]

Thanks for all the replies guys. My wife and I want to avoid having to demolish the wall and have the work re-done if at all possible. The baby could well be here when the work is still underway (not to mention we have two other little boys running around) and would we not want a PWA again or they could potentially stop work half way through.

At the moment though will do still hold the final payment, over £10k.We are in a position that we could withhold final payment if he refuses to make the adjustment but of course if we make the final payment then a problem arises he will be long gone and getting the money or the work made right will be potentially very difficult. Same if the breach was picked up by a surveyor in a house sale.

Do you think we have no other option other than to withhold payment or some of the payment, or do you think a letter with a personal guarantee would suffice?

 

[Chri5]

Builder and or designer / architect error.

I'd be asking them to resolve the matter, or pay the neighbour compo and acquire written agreement that the overhang is acceptable to them.

 

[Superandy]

Hi Chris

I've spoke to a Party Wall Survey today and I have come to the same conclusion. Getting written consent from the neighbours is paramount to all of this.

I have tried to persuade the neighbours and help find a resolution as much as I can but ultimately it is the builders mistake so they need to

a) Re-do the work or
b) Pay the neighbours compensation on the condition they sign the written agreement.

Thanks

 

[nickjb]

Have you paid the builder yet? If you have I suspect he will do very little.

 

[Superandy]

Hi, Fortunately I still owe him the 3rd and final payment around £12k. I fee bad doing this as he is a nice guy but don't feel I have much choice.

 

[noseall]

Can you scan an image of the plan layout and post it, please?