A matter of land | More dividing-fence issues
Good day, readers. This week I respond to another reader who has a boundary query.
Dear Mr Francis,
I have read your article in The Sunday Gleaner of July 30, 2017 and found it to be quite informative. This article has supported my understanding of sharing the cost of the dividing wall, but I have other queries that I would like you to enlighten me on.
My circumstances are as follows:
I am paying mortgage for a semi-detached house in which I am living, shared with one adjoining house. I constructed a dividing wall in the year 2000 and forwarded a bill to the owner of the adjoining property shortly after the construction was completed.
This bill detailed half the cost of the wall, material and labour. To date, the wall has not been paid for.
In 2002-2003, I extended the house. In so doing a wall was built on top of the dividing fence to form a part of the extended house. This was made possible by acquiring another mortgage, which is still being paid.
In 2013, I commenced construction on the upstairs of the extended portion of the house. A wall is now being built above and in line with the lower wall on the dividing fence. This construction is still in progress.
Recently, I noticed that construction was taking place on the adjoining property. From observation, the dividing fence and the wall of the lower extended portion of my house is being used to form a part of the wall to the house being constructed on the adjoining property.
My queries are urgent and are as follows:
What procedure do I need to follow to recover the cost of the dividing fence which has been outstanding for so long?
May I also charge for the wall of my extended house which is now being used as a wall for the house being constructed on the adjoining property?
If in the future the owner of the adjoining property intends to use the wall upstairs, what do I need to do to protect my interest?
I am happy to have been a source of information for you via this media as this is the aim of The Sunday Gleaner and A Matter of Land.
You have found yourself in a situation with a neighbour who is not a very equitable one, as his or her actions since the year 2000 has shown this by his or her lack of compensation of the half costs in constructing the dividing fence.
My first recommendation to you is that you will need the services of an attorney-at-law to help you to navigate your way through this undesirable situation.
However, the half of the cost for the dividing fence constructed in 2000 is a crumbling case. The Limitation of Actions Act of Jamaica would prevent you from claiming any compensation as the six-year time frame to make a claim has elapsed and your rights extinguished.
So the response to your first question would be for you to appeal to the sense of decency of your neighbour and see if he or she will compensate you for the half of the costs to construct the wall in 2000.
Note also, you may not stop your neighbour from using the wall as part of his building as it is a party wall and he is legally allowed to build right up to it.
So unless when the dividing fence was constructed you did so with the wall on your side of the boundary. If that was done, then he may not construct his building to touch it and he would have to construct his own wall.
I am very doubtful that's what was done so you cannot stop him or her from using the wall as part of his or her building.
The wall for your extended house was also constructed more than six years ago, so again, there would really be no legal footing to stand on to demand payment or compensation.
It's not all gloom, however, as I have good news concerning the additional wall constructed in 2013.
I recommend you to get the invoice for the cost of constructing the entire wall, then ask your neighbour to pay the half costs for its construction, as dictated by the Dividing Fences Act.
This should be done through your attorney, and if he or she does not decide to pay, you need to commence a civil suit for the sum. This must be done before 2019. I urge you to engage your attorney and get what's legally due to you.
Until next time, traverse well.
- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at firstname.lastname@example.org or Precision Surveying Services.