# Forum More Stuff Debate & Technical Discussion  HELP / Advise please!! - Next Door development has caused damage to my property

## Maxandtilly

Hoping anyone can offer me some advice on the situation I find myself in...a number of months ago, our neighbour commenced developing units next door as an investment project, with the intention of building & selling upon completion. He started doing earthworks without building a retaining wall and without seeking council approval to remove the pool. He also removed trees against the fence and excavated near the boundary for connection of the sewer. I brought the retaining wall matter to his attention and mentioned that without a retaining wall, this was going to cause instability and possible damage to my property. He dismissed my concerns, and sure enough, I began to notice cracks and movement in the brick wall dividing our properties as the demolition process was taking place, which began worsening very quickly. The damage then extended to my brick arch carport facade, with cracks and movement appearing. Upon desperately pointing this to out to him, he finally proceeded with putting in a retaining wall, but only after the earthworks had been completed.  
After several fruitless attempts to discuss with him regarding having the damage repaired, I then had no choice but to speak to a lawyer about taking legal action against him. The matter is still with the lawyers, but in the meantime, the neighbour has come out saying that the fence is encroaching onto his property by a couple of centimetres. This fence was built over 25 years ago in approx. 1985. He has also obtained an engineers report saying that the size & locations of the footings of the fence do not comply with australian standards, so he is now using this as his escape route, saying that this is the reason that the damage has occured. I have also obtained my own Engineer's report, which says that whether or not the footings comply with today's australian standards is irrelevant, as it would need to be compared against masonry fence standards of 1985, and my engineer believes the size & location of the footings is adequate, and that the damage is attributed solely to the impact from next door, as no cracking or rotation was evident in the fence prior to the commencement of the earthworks next door.  
I now have to make the decision about whether to continue proceeding with taking this neighbour to court to cover the damage. 
Any advice that anyone can offer on this situation would be greatly appreciated. Many thanks.

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## Bedford

> This fence was built over 25 years ago in approx. 1985. He has also obtained an engineers report saying that the size & locations of the footings of the fence do not comply with australian standards, so he is now using this as his escape route, saying that this is the reason that the damage has occured.

  If he pursues this line, as a half owner of the fence, this would make him 50% responsible before he even tries to defend it.

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## woodbe

What is the extent and cost of your claim for damage to your building? 
Offer to pay for 50% of the mutually agreed cost of erecting a new colorbond fence on the boundary after he removes (at his cost) the masonry one he damaged by his reckless development. 
Did you make your complaints in writing? 
Involving lawyers in the dispute will only line their pockets. I'm sure there are low-cost ways of dealing with disputes between neighbours, but it sounds like you have already made that decision. 
woodbe.

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## Master Splinter

You should be able to pursue the matter through small claims.  Lawyers are actively discouraged there, it just takes a bit of time. 
If it was compliant with the standards of the time, then it was compliant with the standard - or is he saying that his building will comply to all possible future standards? 
Trot out the engineers report that the damage to your property is recent (dig out old photos if possible to show no damage). 
And you could always put up a sign on your property (that can be seen from his) along the lines of 'Building owner of (wherever) will be pursued in court for damages caused during construction"  Always good for making a real estate agent worry about showing buyers around.

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## Maxandtilly

Thanks for your replies. I have received a builder's quote of $20k to repair the damage to the fence and carport facade. I would much rather resolve this dispute with my neighbour out-of-court as legal costs are ridiculously high, but he does not think he is at fault and wants to take the matter to court. A concern I have though is that the units he is developing are almost complete, and he will be placing them on the market shortly. If these sell, I don't have a leg to stand on to recoup the costs of repairing the damage. I discussed placing a caveat on the property with my lawyer, but was discouraged from doing so. 
I am so frustrated that his incompetence in developing his land without a retaining wall has cost me undue stress & damage to my property, and I honestly don't know where to from here. For all I know, we could go to court and the judge might find us both at fault, and I could be left with sky-high legal bills and needing to contribute to the cost of repairs.

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## Bedford

> . I discussed placing a caveat on the property with my lawyer, but was discouraged from doing so.

  I would ask for an explanation of this and the reason why, if you're not comfortable with the response, run it past another lawyer for a second opinion.

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## Master Splinter

All I'll say about lawyers is that a place where I worked did a detailed, nit-picking review of all the legal advice received over a 20 year period.   
In essence, half of it contradicted the other half. 
Also speak to your local council.

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## Jamesmelbourne

I would persue through Civil Tribunal. 
Your issues appear to be :Redface:  
1. damage to your property and subsequent loss suffered; and
2. fencing issue 
Re damage to your property 
He was reckless and acted with careless disregard. You should be able to recover the damage suffered as a result of his negligence. 
Re fence 
Assuming your land is not under old system title, you have possessory title given you have held the land, treated it as your own and paid rates on the property for 25 years. What was known as adverse possession in the old system of land is now protected under the Torrens system. Your neighbour is limited to bring an action within 12 years - Limitations Act (or whatever the State equivalent is in your jurisdiction).

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## Jamesmelbourne

Should have clarified the below also. 
If he was carrying out the work under the auspice of a company name you can persue through Civil Tribunal. 
If just an ordinary Joe Blogs you need to go through the Civil Division of the State Magistrates' Court - jurisdictional limit of about 40k.  
Once you get a judgment in your favour (and you should not need lawyers for this, just hit the books) you should immediately lodge a Caveat over one of the properties so that the sales of the units will not settle until you get paid out first!

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## mark53

:Iagree: I have no legal knowledge of your problem but I like the common sense encapsulated in this post. For what it's worth I think your next door neighbour is a "I don't give a dam for your property and rights " two bit developer bogan. Best of luck, I hope you get to stick it to his arrogant @rse. :2thumbsup:

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## Jamesmelbourne

Based on the limited facts you have a claim in Tort law.  
Given you are in WA - s. 3A of the Civil Liability Act 2002 allows you to make a claim for damages.  
You should be able to get up on negligence but failing that, you certainly have a claim in private nuisance/damage to property.  
The issue you will face is that to be successful in a claim of negligence you need to show :Redface:  
1. There was a duty owed,
2. The duty was breached,
3. The actions of your kind neighbour CAUSED the damage to your property; and,
4. That there is resultant damage.  
Note - causation. This is the key here and is the 'arguable' element.  
You need to consider the amount of damage caused and if it is commercially/financially feasible to pursue this rogue.   
You should speak to a GOOD lawyer in WA. DO NOT go to a lawyer who does conveyancing - they are (on the most part) donkeys! You need to contact the Law Society of Western Australia and ask for a referral. They will give you x3 referrals in your area. Ask for an 'Accredited Property Law Specialist'.  
Good luck.

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## intertd6

Do you have a before & after pictures of the damage, like before "no damage" & after "damage", if you dont its just your word against their's unless you spend up big on professional opinions or it blatantly obvious. If anybody damages your property whatever it maybe you have the right to recover damages or compensation for your losses etc. I can tell you that as a professional builder before I did anything on a contruction site I would do a delapidation report on all ajoining properties & if access was denied the courts would not look favourably on any claim they may try to make.
regards inter

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## woodhunt

I have  a similar situation in which to the rear of my property had an old weatherboard cottage removed and units/townhouses put in- they excavated right underneath my bathroom slab without asking and put in a supporting wall- the actual building was 3 meters away from my house. 
It has now been getting on 10 yrs and I now have cracking render at base of that supporting wall and separation along brickwork on the wall where my rear bathroom slab joins my other strip foundations (for going over main sewer).  I would have thought they would have had to engineer support on their land especially when going so close to a main sewer (less than two meters sideways although it's a fair way down)... 
They dug out underneath the actual slab, chiseled concrete footings from their side of the fence that was on my property (ie 60cms of post that was below ground is now exposed on their side with no support), and even had the hide to half chisel bricks from the corner of my house to fit bricks in between fence post and my bathroom wall. 
Is there any time limitation for this kind of thing when it is a slow foundation based damage?  It can look fine for years, but at the end of the day if they have excavated below your house level (2m for example in my case) they have a responsibility to maintain that support. 
Absolutely sickened by these greedy, greedy people who don't even live in the house and want to profit at the expense of the existing residents (we have 6 x 5 story blocks of units behind our house now in the past 12 years where 120yr old houses once stood).

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## Jamesmelbourne

There is a limitation period.  
I see you're in NSW? If this is correct, pursuant to the Limitation Act 1969 NSW, it is 12 years.

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## rmak

It's been months since a neighbour (across the back corner) started to build up 4 town houses. However, her builder damaged part of my fence and after many meetings he does not mean to fixing it. As my property is a rental property, I've been asked by tenant to fix it ever since the new tenant move in on early July. Please if anyone know how to deal with such situation, please advise. Is there no organization to protect innocent parties in NSW? Rosanna

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## intertd6

> It's been months since a neighbour (across the back corner) started to build up 4 town houses. However, her builder damaged part of my fence and after many meetings he does not mean to fixing it. As my property is a rental property, I've been asked by tenant to fix it ever since the new tenant move in on early July. Please if anyone know how to deal with such situation, please advise. Is there no organization to protect innocent parties in NSW? Rosanna

  contact your insurance company.
regards inter

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## Marc

Finally the only sensible answer.
Contact your insurance company.  
That is why you pay insurance for. They are professional litigators and will negotiate with the builders insurance out of court. Any mingling by an amateur like you and your solicitor will only mean more money out of your pocket ... in my opinion anyway.
If you have no insurance that is another matter ... contact your local bikie gang.

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## rmak

> contact your insurance company.
> regards inter

  Thanks for the advice. Rosanna

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## rmak

> Finally the only sensible answer.
> Contact your insurance company.  
> That is why you pay insurance for. They are professional litigators and will negotiate with the builders insurance out of court. Any mingling by an amateur like you and your solicitor will only mean more money out of your pocket ... in my opinion anyway.
> If you have no insurance that is another matter ... contact your local bikie gang.

  Hi Mark & Inter, 
I did try with the insurance company as suggested. Guest what? They advised such damage by a builder is not under the insurance policy! If I claim it under malicious damage or theft, I need to submit a police report which might be rejected as they will not consider a damage by builder as a malicious damage or theft!! Insurance company always cover their backside airtight!!! So there, may be the best solution is to buy some paint and splash it through to their side of the fence and building!!!! :Annoyed:   
Rosanna

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## grantbudd

What a sorry old world we now live in  :Redface: ( For the original poster do you have dates earth works started? I think you mentioned he started before planing was given? Are there engineers reports available pre building started like soil tests etc? 
	All this would have to be submitted to the local council im guessing? If this was all passed which it has then as mentioed in other posts the council needs to be approached ASAP. 
	With the fence there are special avenues you can go down with council when it comes to disputes with your neighbour. Can you issue a stop work order until your property is looked at by an engineer through council? If this damage has happened over this short period of time then who knows what will happen in many years to come....Someone has passed this development as safe and they need to know its damaging your property. 
	Has it had the build signed off through stages?  
	Keep us posted please

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