Liability on a neighbour's land

[LeanTwo]

I now have the necessary planning consent to start my project, which it is a single storey extension.  The build will be up to the boundary of my neighbour's property.  I will need to go onto my neighbour's property to complete the work.  I have discussed this, very amicably, with my neighbour and there is a willingness from them to let me come on to their property.  We have enjoyed good relations with our neighbour's for many years. However, I am to be asked to sign a document, which is being called a disclaimer, by them which will say that I will not take action against them, should I be injured on their property.

 

If this is normal practice then I've no real objection to signing something but equally, if I would be unnecessarily compromising my position, I might have some reservations here.  I guess that, should I damage their property, they may wish to take action against me?  Being a reasonable sort of person, I would expect to make good any damage.

 

Having not come across this before, can anyone give me any guidance?  Is this sort of document to be expected?  Is it usual to have such an agreement?  Are such documents binding and legal?

[Construction Channel]

I know nothing about the legal side of this situation. But I don't think they are being unreasonable. 

 

I would read all the small print of their document just to make sure they arnt trying to shaft you. But I would think they are just trying to cover their own ass. e.g the renderer stands on his rake, tries to "sue" you for an unsafe workplace and you then try to pass the bill on to him because it was his rake. 

 

The world is becoming a fickle place and I can't really blame him. 

 

 

[PeterW]

Property owners have a legal obligation to anyone on their property to ensure it is safe - you cannot sign this away ..! 

 

What happens if you go round to sign it and trip over a loose paving slab on the way back ..? Nothing to do with the build but you have potentially signed away a right according to them.!

 

Ask them if it's a requirement of their insurance company. 

[RichS]

I would say, that if you have enjoyed a good relationship with them in the past, that this is nothing to worry about (subject to wording) and they are simply covering their own backs against any claims, and quite rightly so. They are being amenable to your plans by letting you work from their side of the boundary.

The alternative for them, to avoid any claims, is to simply refuse you the right to work this way.

 

I would say don't look for problems that aren't there, read and then sign the paper, and then buy them a nice bottle of plonk when everything is finished.

 

 

[Ferdinand]

Quote

I now have the necessary planning consent to start my project, which it is a single storey extension.  The build will be up to the boundary of my neighbour's property.  I will need to go onto my neighbour's property to complete the work.  I have discussed this, very amicably, with my neighbour and there is a willingness from them to let me come on to their property.  We have enjoyed good relations with our neighbour's for many years. However, I am to be asked to sign a document, which is being called a disclaimer, by them which will say that I will not take action against them, should I be injured on their property.

 

 

(Note: this is opinion not advice. I may be anal sometimes but IANAL.)

This is a tricky one, as much for the relationship as for the law. This is my longish analysis trying to be relevant to projects of all sizes for future visitors. Agree with @RichS above on yours - this is probably not a hill of beans.

 

I was going to try and summarise the principles, but it is difficult without reading the Occupiers Liability Acts from both 1957 and 1984 and writing an essay about Common and Statute Law. To understand Duty of Care read those 2 acts or a summary thereof. Wikipedia will probably be a place to self-educate quickly, as it is established law so not very controversial.

 

With the husk off, this is how I see it:

 

1 - Should you go "formal", you are in a very weak position to negotiate. At the end of the day, this is a favour by permission only, and he can have you over a barrel holding a horse-whip whenever he wants. You need your neighbour to allow your scaffolding or your workers on his land. He can tell you to take a running jump with no cost to himself except a potentially ugly wall built overhand and the loss of whatever rent you will be paying him for scaffolding if you are using it (£25-£100 a week perhaps?).

 

2 - Legally you can enforce access to maintain existing structures in the end with a Court Order under the Access to Neighbouring Lands Act. That does not cover new developments or structures.

 

3 - From his viewpoint, if a bloke wanting scaffolding or workers on my land - with or without a rent - started talking about his need to preserve the right to take legal action against me if one of his builders did something stupid and broke his neck, trust would evaporate completely and I would quite possibly simply not allow you to do it. Ever.

 

4 - I trust you are aware that Planning Permission does not overrule any of your neighbour's legal rights; it gives you permission to build something provided no one else has a legal right to stop it that they choose to enforce. A favourite phrase by Planners is "not a material planning consideration", which translates to "this is your problem or opportunity and we will not get involved".

So how to proceed?

 

1 - Your need is a) to convince / satisfy your neighbour and then b) to make sure your workers are safe. Proving b is perhaps the best route to satisfying a.

 

2 - Throwing the document back in his face, or a blunt refusal to consider it is not a possibility imo. One option is to sign it and rely on the rareness of landowners being sued after construction accidents to third parties using their land by permission (I wouldn't be surprised if the actual occurrence is a couple of cases in 25 years), plus the professionalism of your builders.

 

3 - I would consider several steps:

a - Identify what the neighbour is actually worried about (and probably have my answer available before any conversation as a good tactic).

b - Talk to your builders. Look at the Public Liability and Employee Liability insurance of your builders. These are I think a legal requirement. And look at their policies to see how this meets the concerns of your neighbour.

c - Do you need / have your own liabiliy insurance for the project? What does that say.

d - Do a specific risk assessment relating to your work on his land, and specifically the risks relating to his liability concerns. Perhaps consult with your advisers / builders / local authority on that, or look for resources online. Your builders or architect may have run up against this in the past, or there could be one attached to a previous PP that you can find. Manage those risks - eg fence off the area you are working in etc.

e - You may be able to get specific insurance if you need, but that could be compromised if you give him an agreement.

 

It very much also depends on the project being done and the relevant risks. So cut your cloth to fit etc. It is easy to overanalyse these things and over elaborate your measures.

 

99 times from 100 this is probably not mentioned, and 999 from a 1000 there is probably no issue when it is.

 

If you do damage their property, then unless you have dug a 5m deep hole where their house used to be and filled it with asbestos, just getting your builders to fix it to their satisfaction, or you or your insurance company paying for their builders to do the same, will be many times cheaper for both than Court Action. People just usually want their lives back rather than spend 5 years making you suffer.

 

Ferdinand

 

Edited April 29, 2017 by Ferdinand

[LeanTwo]

Thanks for the replies to my question, they are very helpful.  I will discuss the issue of safety with my neighbour and maybe look to see if there is a part of the agreement which could include something to ask them to take all reasonable steps to ensure that their property is safe?

 

There seem to be a number of aspects to this.  If I or my builder was injured whilst on my neighbour's property, the liability might be different if it was due to poor or unsafe practice by me or my builder as opposed to unsafe practice by my neighbour (the neighbour's rake in Construction Channel's reply, for example)?  I will check with my builder with regards his insurance and my insurance company with regards to me. 

 

I think that the issue of damage to my neighbour's property is a little clearer, in that should I drop a hammer on my neighbour's roof and crack a tile, it would be perfectly reasonable for my neighbour to expect this damage to be made good.  We have already agreed verbally that I will, as a goodwill gesture, make good some cracked hard standing on their property before we leave it.  I am also channelling a foul drain connection through their property and I will make good the back-fill and surface.  

 

 

[Ferdinand]

1 minute ago, LeanTwo said:

Thanks for the replies to my question, they are very helpful.  I will discuss the issue of safety with my neighbour and maybe look to see if there is a part of the agreement which could include something to ask them to take all reasonable steps to ensure that their property is safe?

 

There seem to be a number of aspects to this.  If I or my builder was injured whilst on my neighbour's property, the liability might be different if it was due to poor or unsafe practice by me or my builder as opposed to unsafe practice by my neighbour (the neighbour's rake in Construction Channel's reply, for example)?  I will check with my builder with regards his insurance and my insurance company with regards to me. 

 

I think that the issue of damage to my neighbour's property is a little clearer, in that should I drop a hammer on my neighbour's roof and crack a tile, it would be perfectly reasonable for my neighbour to expect this damage to be made good.  We have already agreed verbally that I will, as a goodwill gesture, make good some cracked hard standing on their property before we leave it.  I am also channelling a foul drain connection through their property and I will make good the back-fill and surface.  

 

 

 

I do not see how your neighbour would be found liable for things that *you* or *your agents* have done, without a very good reason.

 

The Occupiers Liabilty one that I think about is if eg I had an exposed septic tank (once had some b*gger drop the square lid into the tank - which is why I like round manhole covers) or mini cliff hidden by bushes, and somebody fell off it by mistake. I guess if they trip over an unidentified rockery or fall onto a fencepost that might qualify.

 

The OL Acts circumscribe liability based on circumstances, which may be worth a skim if you feel the need.

 

F

[LeanTwo]

Thanks for the replies RichS and Ferdinand.  We must have been typing replies at the same time!

 

The suggestion to look at the project from my neighbour's "side of the fence" is very helpful and gives some perspective.  So far the project has not caused any breakdown in relations with my neighbour and I intend keeping it that way!  The steps suggested by Ferdinand seem a good way forward and a way of both bringing things out into the open and clarifying issues.

[MAB]

I took out a standard 'Party Wall Agreement' with my neighbour which I think covers some things in these situations:-

 

"You must tell your neighbours if you want to carry out any building work near or on your shared property boundary, or ‘party wall’, in England and Wales."

When carrying out building works you must:

• avoid causing unnecessary inconvenience
• protect your neighbour’s property from damage caused by the works, and fix or pay for any damage that is caused

Access to your neighbour’s property

Your neighbour must allow surveyors and workmen access to their property during usual working hours to carry out the building works. They must be given 14 days’ notice except in an emergency.

https://www.gov.uk/party-walls-building-works/overview

 

Edited April 29, 2017 by MAB

[AliG]

I think as long as the agreement is reasonable I would sign it. It is unlikely they want to do anything other than cover their backs.

 

I understand what you are saying as to signing away your rights if an accident happens due to their negligence and not something you or your builders do. However, if I was in their position I might argue that if you weren't there it wouldn't have happened and they wouldn't have to worry about it. So much as you might consider it their fault, they might consider it your fault for being there and without being indemnified from the risk they could argue they would rather you weren't there.

[Jeremy Harris]

I too would be inclined to sign it, although I frankly doubt that it would carry much weight if there were any damage or accident, laws with a far higher precedence would undoubtedly subsume anything that was written on a note crafted and signed without any form of legal input.  If the agreement had been drawn up and witnessed by a notary, then it might possibly carry a little more weight, but in general I'm of the view that unofficial documents like this rarely have any legal standing, they are often just a comfort blanket for the person that writes them.

 

I can give an example from personal experience, giving evidence on behalf of an insurer.  A gentleman was in the habit of giving friends a ride in his own aircraft, at no charge, just for the experience.  He did not hold a commercial pilots licence, just an ordinary private pilots licence, but he was in the habit of asking his passengers to sign a disclaimer, saying they were flying with him knowing that he was not a commercial pilot and would not hold him liable in the event of an accident (this was a common practice, the bits of paper were often called "blood chits"). 

 

He was insured to carry passengers, and his actions were entirely lawful, as he made no charge for these flights.  One day he took off with a friend from his home airfield, and decided to land on a strip of grass he'd used before, near to where his friend lived.  After lunch at a nearby pub (the pilot didn't drink alcohol) he took off, but hadn't properly assessed the wind conditions, and crashed from a height of around 100ft into a car park.  Both he and his passenger were badly injured.  The passenger sued the pilot, claiming that the pilot was at fault for having failed to properly assess the take off conditions from the grass strip.  I went and looked at the grass strip, spoke to the instructor who had trained the pilot and then gave evidence that, in my view, the pilot was negligent, in that the wind conditions on that day made the probability of the aircraft being unable to climb at a rate fast enough to clear a row of trees highly likely.  The pilot tried to claim that the "blood chit" signed by the passenger absolved him of responsibility, but the court threw that out.  It was not even entered into evidence.  The pilot was found liable and the case was then settled out of court.

 

 

[Ferdinand]

1 hour ago, MAB said:

I took out a standard 'Party Wall Agreement' with my neighbour which I think covers some things in these situations:-

 

"You must tell your neighbours if you want to carry out any building work near or on your shared property boundary, or ‘party wall’, in England and Wales."

When carrying out building works you must:

• avoid causing unnecessary inconvenience
• protect your neighbour’s property from damage caused by the works, and fix or pay for any damage that is caused

Access to your neighbour’s property

Your neighbour must allow surveyors and workmen access to their property during usual working hours to carry out the building works. They must be given 14 days’ notice except in an emergency.

https://www.gov.uk/party-walls-building-works/overview

 

 

i am not sure that 'up to the boundary' activates the PWA, unless you also meet one of the conditions for depth of foundations etc.

 

The Govt imnformation seems to be worded differently from the RICS information on this. THey seem to say it applies to walls 'astride' the boundary.

 

http://www.rics.org/Global/RICS-consumer-guide-Party-Walls.pdf

 

And voluntarily using the PWA may not be valid legally, and does sound slightly bureaucratically masochistic !

 

Open to correction, however.

 

F

Edited April 29, 2017 by Ferdinand