Could I be Held Responsible for Existing Damage to an Adjoining Property?

Question

The problem I have is a neighbour who is unreasonable. She has already been through one dispute surveyor.

I have all the planning permissions to proceed with my extension. Rightly, my neighbour objected but the permissions were given.  She has trees in her garden close to her foundations and situated over the main drain.

My architect says that the foundations of the extension will have to be deeper to accommodate her Yew tree. How can I be held responsible for any damage to her property because of my building work, when the established Yew tree owned by my neighbour may be having an adverse affect on her foundations?

Also, how much is it going to cost me to indemnify her against her own tree?  Where does the act take us when the process is not straightforward? Though I am sympathetic that the lady may not like change, I have been very careful to always be sympathetic to her and acted within the planning guidelines.

Answer

I am assuming that the adjoining owner will dissent to the proposals when the Party Wall Notice is served. She will then be obliged to appoint a surveyor.

Although it is not mentioned within the Party Wall Act, the appointed surveyor(s) will prepare a schedule of condition of the those parts of the adjoining owner’s property considered to be at risk. The schedule will be attached to the agreed award and used to ensure that any existing defects – such as those caused by the roots of the Elm tree that you mention – are not wrongly attributed to the building work.

You say at the start of your question that the adjoining owner has already been through one surveyor. You will be glad to hear that once she appoints a surveyor under the Party Wall Act she will not be allowed to dismiss them. The only circumstances in which a Party Wall Surveyor can be replaced is if they declare themselves incapable of acting or die.

Follow-up

Is there a schedule of surveyors cost available? Do I have to pay for the schedule of condition which addresses the problem caused to her property / drains by her own tree?

Answer

The owner having the work carried out pays their own surveyor’s fee and the adjoining owner’s surveyor’s fees. Although this may seem unfair you should consider the neighbour’s position. She is happy with the status quo – therefore she should not have to pay for a surveyor to limit the risk of her property being damaged by the proposed works. The schedule of condition would be taken regardless of the situation with the tree.

There are no set fees for surveyors. The building owner (the party planning the works) can shop around and get some fixed fee quotes. The surveyor for the adjoining owner will not submit his fee until the award is agreed. All that the Act says is that the surveyor’s fee should be reasonable. If you feel that the adjoining owner’s surveyor’s fee is excessive you can ask your surveyor to challenge it – this may involve referring it to the Third Surveyor for a judgment. The Third surveyor is selected at the start of the process but does not act – or get paid – unless requested to by the appointed surveyors.