Delroy Chambers-v-Ms Nadine Rostant-Gay (2018) Central London County Court
Following the mediation the boundary dispute and breach of party wall matters went to court. Party Wall Surveyor, Philip Antino was instructed on behalf of the defendant Nadine Rostant-Gay. The party’s experts met at the property.
Philip Antino identified unlawful excavations in breach of s.6(1) by the claimant and a clear trespass and damage to the defendant’s garage.
Philip produced a plan recording the position of the boundary between the rear garden and the claimant’s access road. The plan showed that the defendants had not taken any of the claimant’s land. The claimant’s party wall expert accepted the plan.
The claimant was developing their land and required a greater amount of access which involved taking some of the defendant’s land. Rather than just making an offer to purchase the defendants land, they sought to allege (wrongly) that the defendants had taken their land.
The claimant having embarked on a disastrous piece of litigation, commenced a snow ball effect of increased costs.
Prior to trial, the claimants conceded (quite sensibly) and paid the defendants legal costs of £39,000 in full and paid £15,000 for a strip of land 150mm wide by 6500mm in length.
Had the claimants been more open and transparent, the reality is that they could have avoided the £39,000 legal costs and purchased the strip of land for £15,000 or possibly less.
Honesty is the best policy. Always.
During my career as a Chartered Surveyor, I have had many clients come to me with boundary wall issues. It is their belief that their neighbours new wall or fence is not where it should be, i.e. it has moved onto their land.
According to gov.uk, the boundary lines are not always fully recorded between two properties. Who owns the trees, hedges, fence or wall between two properties simply does not exist.
It is not a straight forward process and finding out where your property boundary is requires expert advice which may include reviewing its title plan. Title plans are maps held with HM Land Registry, which is a non-ministerial department that was formed in 1862.
Its purpose is to enable people to register the ownership of their land or property. As an expert in this field, I am amazed that in the majority of cases these maps/plans do not have measurements recorded on them. Given the intent behind the purpose of the maps/plans, this should be a logical addition.
Title plans add an image to the written description of a property and shows general boundaries of the land and may also include parts of any adjoining land. However, it will not show boundary lines that protrude out.
If you are thinking about purchasing a property, it’s a wise idea to check its title plan.
This will allow you to foresee any potential issues and/or view that what’s up for sale more or less matches the title plan information.
When there are concerns you have to ask several questions:
Q - Has your neighbour undertaken his building work within the law?
Q - When did they do these works?
Q - Did they serve you a section 1(1) or (2) notice one month before the start of his works?
Your party wall notice should outline:
a) how the works are to be carried out,
b) a ‘schedule of condition’ about your adjoining property* and
c) actual drawings that reflect the details of the suggested works.
D) your statutory rights.
*photographs of the adjoining property are usually attached to the schedule of condition.
If you have not received a party wall notice you may need to get an injunction served on your neighbour immediately. An injunction can get the building works stopped. Read more about how an injunction works.
Building without a party wall agreement goes against The Party Wall Act, etc. 1996 and is not allowed. Read how I got on at Court when dealing with an injunction.
If you have received a party wall notice but still have concerns, contact your Surveyor. He will explain to you that it is not always possible to define exactly where your legal boundary lays.
During this type of dispute, it’s important to keep calm and follow the advice of your Surveyor. Avoid going to Court as Solicitors fees will soon see your costs spiral out of control.
Discuss the matter with your Surveyor as he may consider that adverse possession has occurred. Adverse possession is when someone treats their neighbours land as though it were his own and he then takes ownership of it. The term adverse possession is also known as squatters rights.
This act usually occurs when a fence, or wall, is erected and stands on land that does not belong to them. Adverse possession usually occurs over a long period of time. After 12 years, if no objection is made, the rightful land owner may lose his rights to claim back his land.
Another way to resolve your boundary matter is to make an application to the Land Registry to define your boundary. They can help only if there is enough proof to verify its position. Each case is assessed by reviewing old title deeds, historical photographs and images. It will help your case if you are able to submit relevant documents, old photographs and witness statements.
Determining boundaries can be a complex issue to resolve. We always recommend talking with the involved neighbours first to reach an amicable agreement, but understand that this is not always possible.
Our experienced Party Wall Surveyors have dealt with hundreds of boundary wall disputes. We have seen this problem occur across the UK, in houses big and small.
If you have a situation that feels out of control or would like a second opinion – Antino and Associates can help. We can act as your Surveyor and deal with your dispute.
We are a team of professionals that understand the stresses that can be experienced. It is our aim to offer advice that is easy to understand, provide reports that are unbiased and give speedy resolutions.
We regularly travel to clients across the UK. Do you live in Cambridge, London, Essex or Norfolk? Call 01245 490 019 today to make an appointment that’s convenient for you.
Anyone considering mediation as an alternative to the Party Wall Act (PWA) should read this carefully before jumping ship and moving away from the protection that parliament provides.
Mr David Pett a conveyancing solicitor wrote an article on the conveyancing exchange portal. He suggests that mediation is a more effective and alternative way of dealing with party wall matters. Mr Pett relies upon the Mohamed & Lahrie v Antino & Stevens (2017) case in support of his contention.
However, it is notable that he does not know the outcome of the mediation agreement between the Mohammeds and the Takhers.
The decision in Mohamed & Lahrie v Antino & Stevens (2017) is being misinterpreted by various parties.
The facts of the case are straightforward. The Mohammeds having breached the party wall act and other various inappropriate behaviour of which Mr Alistair Redler was a participant wanted to walk away from the PWA. The Takhers agreed although have now incurred cost which they thought they could avoid through mediation.
The Mohammeds were represented by Mathew Hearsum and Nick Isaac who came up with this option. To avoid having to appeal a very solid ex-parte Award dealing with Mr Antino (adjoining owners surveyor) and Mr Leslie Calder (adjoining owners checking engineer) fees. This was served upon Mr Osborn (building owners surveyor) who refused to engage with his statutory duties under s.10(13) and agree fees with Mr Antino. Following service of a request under s.10(6) Mr Antino proceeded ex-parte.
Mr Antino determined that his fees together with the checking engineers’ fees were £17,570.94 inclusive of VAT.
At paragraph 13 of the Award Mr Antino offered a 30% reduction reducing the amount to £12,299.66 inclusive of VAT if the fees were paid within 16 days.
The Mohamed’s did not accept this offer. Instead, acting on legal advice from Mr Hearsum and Mr Isaac they sought to appeal both Awards.
Then changed their minds shortly after Alistair Redler’s conduct was questioned, they suggested mediation and at the mediation persuaded the Takhar family (adjoining owners) to agree to the appointment of an independent assessor to consider inter alia the combined fees payable to Mr Antino, Mr Calder and Mr Stevens in relation to a Third Surveyors Award.
The independent determination was as follows.
The Mohamed’s should pay Mr Antino £15,872.32
They should pay the engineer £2,025.90.
The combined amount of £17,898.22 is £5,598.56 above Philip Antino’s reduced offer of (£12,299.66) at paragraph 13 of the ex-parte Award.
In addition to those costs, the independent assessor determined that the Mohamed’s should pay Mr Raymond Stevens £9,460.50.
In addition to the mediation costs, this “Agreed Surveyor” charged £8,280 which was split between the Mohamed’s and the Takhar’s.
What could have been settled by the Mohamed’s for £12,299.66 is now costing them £31,498.72 plus unknown legal fees for Mr Hearsum and Mr Isaac.
I do not understand the logic adopted by the Mohamed’s.
However, given Master James recent criticism of Mr Hearsum attempting to claim double fees that the Mohammed’s should have their legal costs independently assessed.
If anyone still believes that opting out of the Party Wall Act and using mediation is a sensible way forward, then they need to take a long hard look at the associated costs and risks associated with doing so. Whilst it might favour the legal professionals it will not suit the owners.
The Party Wall Act works, when there are surveyors acting independently and not being guided by their appointing owners or their legal advisers.