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Damage to land – who pays?

13 Nov 2018

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By Janice Hughes, Director, Aspiring Law

We’ve received several requests lately to provide a heads up on what happens when one property owner damages another party’s land. Where do responsibilities and obligations begin and end, we’ve been asked. And, not surprisingly, the big question: who pays?

While there are general common law rules, I have to say at the outset, there is no one-size-fits-all answer to all situations. There are exceptions, as well as ifs, buts and unexpected fishhooks. So, if you have had your property damaged, or, conversely, have caused damage to someone else’s land, and you don’t read any further, my overarching advice is: Get legal advice, specific to your particular circumstances, and get it urgently.

To give you a general guide, though, let’s take a look at some of the fundamental common law rules that govern such situations. Perhaps at the heart, is the overarching legal expectation that any landowner has the right to enjoy their property, and that your neighbours should not do anything to their land that affects yours.

Duty of care

Every landowner has a duty of care not to use his or her land in a way that causes a neighbour’s land to collapse. Major headaches can occur around the likes of earthworks, including excavation. First off, as a landowner you have “the right of support for the land in its natural state”. In plain English, that means no-one adjacent or subjacent to you should do anything to their land that affects the stability of yours. That can include the likes of excavation, and drawing off underground water or silt. For example, go and whip out that retaining wall at your peril. However, it’s important to note that, where land is unstable, an adjoining landowner usually does not have a duty to stabilise it, only a duty not to remove any support already present. Also, if a landowner replaces a natural support with an artificial support, they don’t incur liability. There is no particular liability, either, when a support, such as a retaining wall, has been removed by natural causes, like a flood.

An owner of higher land is likely to be liable to an adjoining owner of lower land if soil he or she has placed on the land escapes to the lower land, for example by the collapse of a retaining wall.

So, what’s the legal remedy for damage caused by the withdrawal of land support? Damages, usually – and that can, in some instances, include claims for damage to affected buildings.

If you’re the one doing the excavating, it’s really important you understand you typically remain liable, even after the property’s sold – liability does not automatically pass down to new owners. Contractors, particularly the likes of excavators, also need to take heed – when you work on a property, you carry a duty to exercise reasonable care. A landowner who suffers damage due to your actions can take a claim against you, and that includes not only your client, but also any affected neighbours.

A territorial authority also owes a duty of care to a landowner in relation to the inspection of buildings during construction, and consequently it might be liable, not only to the owner of the building it inspected, but to adjoining owners if damage is caused to their land.

Again, every case is different, and there can be legal exceptions, depending on the circumstances.

Do your homework

Like most things legal, prevention is way better than the cure. If you are doing anything on your property that poses potential risk to another, make sure you have done your homework, scoped the work thoroughly, and called in the experts where needed.

If you’re unfortunate enough to incur damage to your land through the actions of others, as hard as it might be, first step is to keep your cool. This can be a complex area, so it’s best to see your lawyer, explain the situation and get their initial advice, so you can be informed, and fully understand your options. Sometimes, depending on the circumstances and urgency, from there it can be more neighbourly and conducive to long-term relations to try and resolve the situation one-to-one with your neighbour. In other cases, it will be preferable for the lawyer to represent your interests, especially where there is risk of further damage.

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