Building Owner is Refusing to Repair Damage Until we Consent to his Special Foundations

Question

We live in a terraced property and have been trying unsuccessfully, for over 13 months, to recover repair costs from our adjoining neighbour who started building work unlawfully and caused damage to the party wall in the process.

After much pressure and dispute, the necessary Planning Permission and Party Wall notification were subsequently put in place. The latest negotiation tactic being used by the building owner requires us to give consent to ‘special foundations’ in return for an offer to meet the cost of the repairs to the earlier damage. It would seem that we came to an impasse as we rejected the offer – on the grounds that we were being held to ransom and suggested that we would be prepared to discuss the issue of consent to ‘special foundations’ after payment had  been received for the repairs.

Recent information from our surveyor indicates that reinforcement is actually now being used regardless in the foundations currently being constructed (for a new basement). We regard this to be a further act of blatant disregard to the relevant laws but we have no confidence at all, in the process for enforcement.

Would you have any advice as to what our next cause of action should be?

Answer

Payment for damage should not be dependent on your consent to special foundations. The damage should have been assessed by the appointed surveyor(s), a payment in lieu agreed and that figure confirmed to the owners in an addendum award (or an exchange of letters).

The only way to enforce a surveyor’s award is by going to court although that should be quite straightforward.

It is difficult to advise you in detail when a dispute is already this far down the line. Have you not asked your appointed surveyor to assist? Did you have separate surveyors or did both owners concur in the appointment of an ‘Agreed’ Surveyor?

Follow-up

The initial damage was assessed by both appointed surveyors but no addendum award was issued – only the original one which did not include a payment in lieu.

As for the special foundations; the information that reinforcement is being used in the foundations had to be dragged out of our appointed surveyor. We find that information is not readily forthcoming from him even when prompted directly – which adds to our frustration at the moment. Would we need him to take this information to court? And as the work is currently ongoing, what happens if it is completed before any action can be taken?

Answer

If you feel that the surveyors have failed in their duty to deal with the damage that has occurred you can ask the selected Third Surveyor to become involved – you will find his details in the award. As an owner you can make a formal referral to him although it may be best to try and have an informal chat first as a referral will generate fees.

Regarding the special foundations – the reason why they require your consent is that they are difficult to alter later. While I would not suggest agreeing just because you are being put under pressure by the Building Owner there is no reason not to consent if they will not obstruct you in the future.

While I do not have any personal experience on this point I would guess that a court would insist that any special foundation that were cast without consent should be removed.