Damages for trespassing foundations

21 August 2014  |   Basements, Party Wall Blog, Party Wall Damages   |     |
featured-party-wall-damages

In my last post I looked at what remedies were available to an adjoining owner when faced with underpinning that has encroached onto their land, and in particular the remedy of self-redress. In this post I will look at how the adjoining owner can recover the losses incurred in removing the trespassing foundations, which owners those claim may be brought against, and in which venue the claims may be brought.

Types of claim

There are a number of possible claims open to the adjoining owner:

Which building owner?

The obligations and duties under the 1996 Act are personal to the original building owner and are not transferred to successors in title. Therefore, the claims under section 7(2) can be made against the original building owner, even if they have subsequently sold the property.

Because these duties are personal to the original building owner claims under the 1996 Act cannot be made against any subsequent owner. Instead, the adjoining owner will have to make a claim for damages for trespass in the County Court.

Which venue?

The adjoining owner has a choice of venue in which to make bring these claims:

  • The Original Surveyors: The adjoining owner can refer the claims under sections 11(10) and 7(2) to the original tribunal of surveyors; that is, the tribunal that issued the award that permitted the original underpinning.
  • The County Court: A claim for trespass against the original building owner or any successor in title must be brought in the County Court. In addition, under section 16 of the County Courts Act 1984 the County Court retains a jurisdiction to hear claims for monies due under a statute. This will include claims under sections 11(10) and 7(2) of the 1996 Act.

Note that the current tribunal of surveyors – the surveyors appointed to deal with the adjoining owner’s works – cannot deal with these claims. Claims under section 11(10) and 7(2) can only be made by an “adjoining owner”. Within the context of the current works, the original adjoining owner is a “building owner” and so the surveyors cannot award compensation to a building owner under sections 11(10) or 7(2). This view was supported by HHJ Bailey in Davis v Trustees of 2 Mulberry Walk (unreported).

Limitation

Claims under sections 11(10) and 7(2) are sums due under statute and so the limitation period is 6 years from the date on which they became due i.e. the date on which the losses were incurred. Similarly, a claim for damages for trespass is also 6 years from the date on which the loss was incurred.

However, limitation periods apply only to bringing a claim in Court. There is no limitation period on a claim referred to the tribunal of surveyors.

A quick word about section 2(2)(g).

I received several responses to my last post querying why I did not mention the ability to remove the trespassing underpinning using section 2(2)(g) of the 1996 Act. Whilst it is possible to undertake the removal works under section 2(2)(g) of the 1996 Act  I would not recommend doing so for three reasons.

First, the effect of section 11(1) of the 1996 Act is that the removal works must be carried out at the cost of the person doing them (i.e. the adjoining owner). This would prevent the adjoining owner from recovering the costs of the removal works.

Second, the adjoining owner would become a building owner, and as see above, building owners have no claim under sections 11(10) or 7(2).

Third, if the adjoining owner carries out the works under the 1996 Act they would be subject to the statutory indemnity in section 7(2) which imposes a greater obligation to compensate for any loss than that imposed by using the remedy of self-redress, and they may become liable to pay compensation to the trespasser.