Dear Property Doctors, 

We live in a lower ground floor flat within a semi-detached Victorian house in London. On the exterior wall side of the house is a narrow strip of land that separates our building and the next-door house (another converted semi) and belongs to our next-door neighbour which they use as a garden.

At some point (prior to us buying the flat) a brick and concrete raised patio was built on our neighbours’ land, abutting our exterior wall. Our neighbours now plan to remove part of this raised structure that is literally attached to our wall. We only discovered this when we heard some loud drilling that went on all day and literally made our walls vibrate. 

After some toing and froing our neighbours eventually admitted they had been carrying out “exploratory” work ahead of a plan to remove the raised garden that joins our wall. 

Naturally we are concerned about any damage that this may cause to our property, but our neighbours’ architect says that we have no rights under the Party Wall Act since they are not building a new structure nor excavating below foundation level within three metres of our wall. 

Is he right and if so, do we have any protection whatsoever?

GR, by email

I am afraid the architect is right about the Party Wall Act. The wall of your house would not normally be considered to be a party wall, since it would have been constructed wholly on your land. 

The Act will not apply as your neighbour does not intend to carry out any work on your wall. It does in certain circumstances apply where there is excavation on adjacent land but only, as you say, if he is proposing to excavate to a lower level than the bottom of the foundations of your building.  

Since you say that the concrete patio that is to be removed was not there originally, then it is unlikely this is the case.  

However, that is not the end of the matter. A person should not carry out work that would result in damage to his neighbour’s property. If your wall is damaged, then it seems to me you would have a claim in negligence or nuisance. 

The biggest problem in these cases is that a person is not liable for “torts” (ie legal wrongs) committed by his independent contractor unless he has authorised them. Clearly you would not want to have to chase a contractor who damages your wall. 

However, if you can show that what your neighbour was doing inevitably would cause damage to your wall, then it seems to me that your neighbour must be treated as having authorised the nuisance and therefore you would have a claim against him for the cost of making good the damage.  

If he refuses to make good then you could have the work carried out yourself and sue him for the cost. 

David Fleming is the head of property litigation at William Heath & Co solicitors (williamheath.co.uk)

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