If a building owner builds a wall wholly or partly on the adjoining owner’s land without consent the adjoining owner may apply to the Court for an injunction requiring that wall to be demolished.
However, it should be remembered that the Court does not have to grant an injunction, and may award damages instead. The Courts have developed a “good working rule” for when the Court will award damages.
The elements of that rule are set out in Shelfer v City of London Electric Lighting Co Ltd:
- If the injury to the adjoining owner’s legal rights is small;
- If the injury is capable of being estimated in money;
- If the injury can be adequately compensated by a small money payment; and
- If it would be oppressive to the building owner to grant an injunction.
There are two cases that consider these rules in the context of the Party Wall Act.
Seef v Ho
In Seef v Ho the building owner demolished the roof of their garage, which enclosed upon the adjoining owners side wall and rebuilt it 12 inches higher. The building owner did not have the adjoining owner’s consent to those additional 12 inches, and so it was a trespass. The adjoining owner issued a claim for an injunction requiring the removal of the trespassing roof.
The County Court concluded that it would be oppressive and disproportionate to require the demolition of the roof and refused to issue an injunction, instead awarding damages of £400. On appeal, the Court of Appeal supported the refusal of the injunction, but agreed that the damages were insufficient; they substituted an award of £500 instead.
Rashid v Sharif
More recently, in Rashid v Sharif, the building owner had built a party wall around 9 inches into the adjoining owner’s land. The adjoining owner applied for an injunction requiring removal of the wall.
The County Court initially granted an injunction, but the was overturned by the Court of Appeal who replaced it with an award of damages in the sum of £300.
The lesson to be learnt here is that an adjoining owner faced with a physically modest trespass by the building owner has a limited period within which to make an application for an injunction.
If the adjoining owner allows the building owner to complete their works then they are likely to have to make do with a very small award of damages instead of an injunction.