Removing trespassing foundations

News - 14/08/2014

Over the last 18 months I have seen an increasing number of cases where the underpinning from one development has encroached upon adjoining land, thereby affecting or preventing development of that adjoining land.

This can be a very tricky issue, particularly where one or more of the properties have changed hands since the original works took place.

This first post will look at the options open to the adjoining owner upon discovering the building owner’s works have trespassed. The next post will look at the liabilities of the original building owner and their successors in title.

The right to underpin

Under section 2(2)(a) of the 1996 Act a building owner may underpin a party wall or structure, or a wall belonging solely to the building owner. It is generally accepted that this right extends only to underpinning the width of the foundations of the wall or structure, and if the underpinning travels beyond that edge then they are outside the works permitted by the 1996 Act, and are a trespass.

These trespasses are only discovered when the adjoining owner want to undertake their own works, at which point the adjoining owner has a number of options.

Injunctions

The adjoining owner may apply to the Court for an injunction ordering the building owner to remove the trespass. Trespass is one of the few “torts”, or civil wrongs, that are actionable per se; that is, an adjoining owner may sue without proving that they have suffered any loss or damage.

However, a claim for an injunction is not without difficulty. It may take as long as a year before the claim reaches Court. This will usually cause an unacceptable delay to the adjoining owner’s other works.

The result is also uncertain; the Court has the discretion to award damages instead of an injunction – particularly where the encroachment is small, and any damage is capable of being reflected with a modest monetary payment.

Because of these difficulties many adjoining owners elect to use the remedy of self-redress.

 Self-Redress (or “Self-Help”)

The remedy of self-redress allows the adjoining owner to take unilateral action by cutting away the trespassing underpinning without the permission of the building owner.

The principles of self-redress were set out in Burton v Winters [1993] 1 WLR 1077.

“…the courts have confined the remedy by way of self redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Thus, it … where there is resort to self-redress, the remedy should be taken without delay.”

Self-redress will be appropriate in most cases of encroaching underpinning, because it is a simple and obvious trespass, and because removal of the encroachment is almost always urgent; if the trespass is not removed quickly it may well delay other works on site, usually at great cost.

But self-redress is not without risk. When removing the trespass using self-redress a duty of care arises to take reasonable care to prevent or minimise damage to neighbouring property. This will usually require the use of a low-vibration technique such as stitch-drilling or water-lancing to remove the encroaching underpinning.

The adjoining owner should also tell the building owner what is proposed by providing a proposed method statement, and encourage the building owner to take such steps as they think are necessary to protect their property; for example, removing valuable paintings from the wall, or taking that priceless Faberge egg off the shelf.

It is also a good idea to invite the building owner to appoint a surveyor to review and, if possible, agree the proposed method statement. However, if agreement is not possible this should not deter the adjoining owner – they may proceed to remove the trespass even without the building owner’s permission.

Once the trespass has been removed there will need to be an enquiry into the losses suffered by the adjoining owner, which may include the cost of the removal works as well as associated professional costs.

In the next post I will look at which tribunal should decide liability and quantum of such a claim and the issues that arise where the original building owner has subsequently sold.