Apostal v Simons & Cave

Case Summary

 

Court:
 Court of Appeal
Statute:
 Law of Property Act 1925, s. 38
Facts:

Apostal owned the freehold of 117 Hackney Road, London, E2. Simons owned the freehold of the adjoining property at 1A Gorsuch Place. Cave & Co was their tenant.

Cave & Co stacked timber against the party wall which eventually caused sufficient damage that a dangerous structure notice was served requiring the wall be demolished and rebuilt. Apostal brought a claim against Simons and Cave for the total cost of repairing the wall, on the basis that it was their fault. The Court dismissed the claim against Simons, but held that Cave & Co was liable for the damage an awarded the full cost of repair against them. Cave & Co appealed.

Decision:

The Court had been wrong to award the total cost of the repairing works. Following s. 38 of the Law of Property Act 1925 the ownership in party walls previously in joint ownership (as this one was) were severed vertically along the boundary line, with each owner owning their half, and having easements of user and support over the other half of the wall.

As Apostal only owned one half of the wall, he can only recover damages for that half (i.e. half the cost of repair) against the person that committed the wrongful act. Because he did not own the other half of the wall, he could not recover damages for damage to it.

As to the other half of the wall, Apostal might have had a claim against Simons for interference with the easement of support, but this claim could only be brought against Simons as a party to the easement. It could not be brought against a third party such as Cave & Co.

The appeal was allowed in full on other grounds

Comment:

Although this case was decided before the Party Wall etc. Act 1996 it was decided under different legislation, the Law of Property Act 1925. It is therefore likely to be binding.