Will Cursham explains the right to support and courses of action that may be available if it is undermined
A right to support from adjacent land is a right not to have your land appreciably affected by something done on the adjacent land. It does not prevent an adjacent owner from doing things to its land, as long as those things do not damage your land.
Both land and buildings can enjoy a right of support, whether from adjoining land or an adjoining building. The support can be lateral (from the side) or subjacent (from underneath). How is the right of support established or acquired and what action can be taken if breach occurs?
Express or implied
Sometimes a building may enjoy an express right of support from adjoining land or buildings. For example, terraced or semi-detached houses built as part of a development will probably enjoy mutual rights of support that have been expressly granted or reserved in the transfers. A preliminary step in any investigation therefore is to see if there is any such right granted in the transfer, or recorded on the official entry at the Land Registry.
In the absence of an express right, property may enjoy an implied right of support. This can exist where two buildings that support each other were originally in common ownership. When one is disposed of and the other retained, or if both are disposed of at the same time, each will acquire an implied right of continued support against the other.
Natural or acquired
If there is no express or implied right of support, it will have to be shown that the land enjoys a natural right to support or, alternatively, a right to support that has been acquired through long use.
Land in its natural state (without buildings or man-made structures) enjoys a natural right of support from adjacent land. If a field is owned in which a large hole suddenly appears and it could be shown that the hole resulted from a withdrawal of support caused by activities on neighbouring land, there would be a course of action against the neighbouring landowner. The advantage of having a natural right of support is that the owner would not have to prove how long the land had enjoyed that support – it is simply there, naturally.
On the other hand, buildings and other man-made structures do not have a natural right of support from adjacent land. The logic is that a building does not form part of the land in its natural state, and so does not enjoy a natural right of support from adjoining land. Instead, the building has to acquire a right of support from the adjoining land. This can be achieved by an express or implied grant or, far more commonly, through prescription. The same applies to support from an adjoining building – this also has to be acquired by prescription.
Acquiring rights to support
In this sense, rights to support are much like easements and the rules as to how rights are acquired through prescription apply in the same way: whether by common law prescription, the doctrine of lost modern grant or, more commonly, the Prescription Act 1832. It therefore has to be demonstrated that a building has enjoyed support from the adjacent land (or building) for more than 20 years. The use has to be uninterrupted, meaning that if the right has been interrupted for a year or more during the 20-year period, then it will not have been acquired.
Similarly, the right will not be acquired through prescription if:
- it was acquired by force;
- the adjacent owner gave permission for his land or building to provide support for the relevant building; or
- the adjacent owner did not know that his land or building was providing support to the building.
In terms of the adjacent owner’s knowledge that his land or building is supporting the building, it is sufficient that he can see that his land or building is providing support. Usually this is obvious, and therefore easy to show that he had the requisite knowledge.
A measured duty of care?
In order to establish that it has a right to support, a property has to have enjoyed the right for more than 20 years. However, if it has not enjoyed the support for 20 years, is there any other recourse against the neighbour?
In such situation, it may be possible to rely on what is known as a “measured duty of care”. This is a duty owed by a landowner or occupier to prevent danger to a neighbour’s land arising from a lack of support due to natural causes (see Leakey v National Trust [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705; [2000] PLSCS 39). Of course, work done by a neighbouring landowner is not a “natural cause”, but the duty was extended to damage caused by demolition works in Rees v Skerrett [2001] EWCA Civ 760; [2001] 3 EGLR 1.
In order for such a duty to exist, it is necessary to show that:
- the owner or occupier knew, or ought to have known, of the hazard caused by the works;
- the damage caused to the land was reasonably foreseeable; and
- it is fair, just and reasonable in the circumstances to impose the duty.
What is actionable at law?
Once it is established that a piece of land enjoys a right to support from the neighbouring land, or that the neighbouring landowner has breached its measured duty of care, it is necessary to establish whether the neighbour’s actions are actionable at law. For this to be so, the property has to suffer actual damage; damages for future damage or for the costs of preventative measures cannot be claimed.
For example, a building is located at the top of a bank and at the bottom of the bank is a wall, located on a third party’s land, which serves to retain the bank. Where the neighbour fails to maintain the wall, damages cannot be claimed for the costs of any preventative work undertaken.
However, it may be possible to obtain an injunction preventing the neighbour from taking down the wall if it is likely to cause damage to the relevant property. Similarly, an injunction may be obtained forcing the neighbour to maintain the wall if there is likely to be damage caused to the property if such works are not undertaken. Injunctions, however, are notoriously difficult and expensive to obtain.
Party Wall etc Act 1996
Section 7 of the Party Wall etc Act 1996 (the “1996 Act”) provides a further potential cause of action. Under section 7(2) a building owner must compensate adjoining owners or occupiers for any damage or loss that they might experience during, or as a result of, works carried out under the 1996 Act.
For the 1996 Act to apply, the works must be works to a party wall, party structure, or excavation within six metres of a building. Works include: carrying out works to an existing party wall or party structure; building a new party wall or a new wall adjacent to the existing one; and building within three to six metres of an adjoining owner’s walls.
The 1996 Act sets out a notice procedure that a party must comply with if it wants to undertake such works. In the event that the parties cannot agree the works, they can appoint a party wall surveyor, who will make an award specifying how the works are to be carried out, and who pays for them. If the adjoining owner experiences any loss or damage as a result of these works, then they may make a claim under section 7. The party wall surveyor would have jurisdiction to deal with the claim.
Unfortunately, this remedy is only available where the works that cause the damage result from works carried out in compliance with the 1996 Act. If, however, they are not, reliance has to be placed on the other causes of actions described or, alternatively, a beach of statutory duty.
Why this matters
Imagine that you own an office block that was built around 20 years ago. The neighbouring owners decide to demolish their existing building and construct a new one. During their works, they remove a wall located between the two buildings and then dig down into the ground in order to construct new foundations.
A few days later, disaster strikes: your building begins to subside; the building is evacuated and engineers are brought in. Unfortunately, the building continues to subside and the only option is to demolish it. You and the insurer are left with the huge cost of demolishing and reinstating the building, not to mention the expense of relocating staff and lost working hours.
Can you look to next door’s owners to compensate you for these huge costs? The answer to this depends firstly on whether you can show that the next door owners’ works caused the subsidence, and secondly whether you can establish that your building has a right of support from the neighbour’s land. The first question is a factual one, while the second is a legal one.
Assume now that you obtain advice from structural engineers. They advise that the subsidence of your building was caused by your neighbour’s works, partly by the excavation works, and partly by the removal of the wall.
Having established the factual cause of the subsidence, you must now establish a cause of action against your neighbours. Given the circumstances, there will probably be three options:
- a claim for withdrawal of support based on a right to support from the neighbouring land;
- a claim in negligence or nuisance; and
- if the wall was a party wall or structure, a claim for compensation under the 1996 Act.
It may sound like an extreme example, but these scenarios do arise. There are other circumstances that will raise the same legal issues. See the example of a building located at the top of a bank and at the bottom of the bank is a wall, located on a third party’s land, which serves to retain the bank and the neighbour fails to maintain the wall.
Further reading
- Gale on Easements Sweet & Maxwell, 19th ed, 2012, chapter 10
- Party Wall etc Act 1996
- Dalton v Angus (1881) 6 App Cas 740
Will Cursham is an associate at Gateley LLP
