Re: Who is responsible for this? Pictures work now!21
Apr 17, 2014 10:49 am
God, I'm hoping it won't end in bankruptcy. Ultimately, we need a house to live in!
And yes, Saint Mike - I'm really feeling like it was beyond our control. Which is what scares me. The legal process is beyond our control too.
On the positive side, we got a building inspection report. He really didn't hold back. He stated that the wall was clearly on our property, it was never designed to be a retaining wall, and that teh recent demolition of our house had no bearing on the wall. It was going to collapse anyway, due to the weight against it. Further - that it could have collapsed at any time in the last 7 years since it was built, and it could have killed someone.
He went on to say that the neighbour was clearly negligent, and that it is the responsibility of the neighbour to fix everything, as well as to rebuild our original wall, or reimburse us the cost of that wall.
We will be speaking to the lawyer today. I'm really hoping it's more good news. I can't take anymore bad. But feeling a little better that a professional (and independent) building inspector has that opinion.
What I still don't understand is how their insurance company assessor could say the opposite? If the neighbours are being truthful, that is. How can another professional building inspector come up with something so different?
Re: Who is responsible for this? Pictures work now!22
Apr 17, 2014 10:53 am
Dont fret! The insurance company may not have even assessed it, or used a professional to ascertain an opinion.
They may just be going off their clients description as to who holds the liability (which can be inaccurate obviously).
You have an independent report in response, and until they produce one to the contrary, not just from an internal assessor, you are in a good spot to fight.
Dont forget their IDR (Internal Dispute Resolution) process is open to you, and will then move on to FOS if you remain unsatisfied - this is avoided at all costs by insurers just due to the costs involved and the fact that every single duck must be in a row for them to have a chance at winning.
I dont think you'll get to that though. You definitely sound like you are in the right and now you have an independent reoprt backing that up...
Re: Who is responsible for this? Pictures work now!23
Apr 17, 2014 11:15 am
Their insurance company obviously don't want to pay and are trying to shift the blame to you. Subject to a few professional building inspector reports which will come to the rapid conclusion that what your neighbours have done is illegal I doubt whether they will reimburse your neighbours either. Your neighbours will have to foot the bill themselves despite them jumping up and down.
You just might be in for a bit of legal argy-bargy before that happens which could take a while unfortunately.
Re: Who is responsible for this? Pictures work now!25
Apr 17, 2014 12:13 pm
I would 100% wager a guess that their insurer is going off a very one sided description of events...
ie: "My neighbour has pulled his house down including a boundary wall and now my garden has collapsed".
Not exactly the truth, but initially they can/will only act on that assumption.
Once this other information becomes apparent, that's when it'll change.
Re: Who is responsible for this? Pictures work now!26
Apr 17, 2014 12:22 pm
Thanks again everyone.
Yes, they initially said that the insurance company said over the phone that it was our fault for removing the house. But then they said an assessor came on Monday or Tuesday and maintains that story - our fault.
Our building inspector said that he often does inspections for insurance companies, and he would be telling the company that there was no claim here, it is totally the owners fault, and caused by negligence and building without approval.
Apparently the insurance company did say that they would replace the colourbond fence on the top though.......
I'm hoping that our lawyer will be able to speak to the insurance company direct, and get some definite answers. As I said earlier, I'm really impatient - and don't want to stress for the whole Easter break.
We really need to get in and make this safe so the builder can start. Not looking too promising though.
Re: Who is responsible for this? Pictures work now!27
Apr 17, 2014 12:27 pm
Just remember insurance companies dont make the law...
Your lawyer will assist on setting the record straight and getting the right outcome. As others have echoed, it may be a bit of a battle... but I think you'll get there.
Re: Who is responsible for this? Pictures work now!29
Apr 17, 2014 3:39 pm
No - we had nothing to do with any of it. He didn't ask for money or our involvement, just enquired if we minded if he replaced the asbestos fence with colourbond, which we were fine with.
Another question for those that might know. If this becomes a full-blown dispute, can he be in trouble with council for building a retaining wall over their height allowance without their approval or permits? I know they've said it is a civil matter, but surely councils insist on approvals for a reason? Especially when it is clearly dangerous?
We can't even cut down a tree on our property without asking them. How can he build 1.5m wall?
Re: Who is responsible for this? Pictures work now!31
Apr 17, 2014 7:49 pm
To me, this is a clear case. All you need is a lawyer who knows how to make use of this information and how to write an effective letter.
We have recently demolished our home ... We left one wall of our carport, as a "feature" around the courtyard in our new home. (weird, I know, but we had a plan).
Unless you have papers that prove that this "carport wall" was to serve as THE retaining wall for their land?
Which state are you in? Maybe ppl can help in suggesting a good lawyer who has dealt with domestic case like this one.
My signature is distracting people from my wise posts ...
Re: Who is responsible for this? Pictures work now!32
Apr 17, 2014 7:58 pm
..can't believe a neighbour would even contemplate doing this without consent.
That's a lot of soil, and without proper drainage as well.
Exactly my thoughts! And a good point - where was the mandatory drainage for this "retaining wall"? To think that someone would pile up about 1.5m soil against someone else's property ... not even 1cm is allowable in my books, let alone that much! As if the height difference of the two blocks was not enough already ...
You are the side who is entitled to chase them for all the damages, including any eventual extra cost charged to you by the builder in case of delays, plus the extra rent etc. (looks like you wouldn't probably even think about it, but just stating other costs)
My signature is distracting people from my wise posts ...
Re: Who is responsible for this? Pictures work now!33
Apr 17, 2014 8:09 pm
Thanks Lex. You a re right, there is no sign of drainage either. Just a pile of sand and rubble, with the pilings for the colourbond fence in the top, which are now dangling in mid-air.
We are still of the opinion that to fix it all quickly, we would still be happy to rectify our side (remove the rubble etc) if he fixes his part. We don't care more about that.
If he continues to refuse though, and we end up in court, we will not be so amenable. By then, I would imagine it would have taken several months - rent and builders fees will have to come into it.
The Lawyer needs to talk to the insurance company now. See if they have a report and what it says. Again, if they are being truthful about this insurance assessors assessment.
I was just starting to get excited about the build starting, too.
Re: Who is responsible for this? Pictures work now!34
Apr 18, 2014 9:54 am
Looks as if it will need to go to court if you want a retaining wall without having to pay for it.
Lets assume their insurer agrees with your building inspection report.
His insurer at best will pay for the colorbond fence and maybe the damage to rebuild your brick wall. They wont put a retaining wall in because their wasn't one there before and they wont pay to fix a building defect.
Your neighbour will then have to pay for the retaining wall, as they should have 7 years ago.
I think council would only be interested if there was a retaining wall and it fell over.
Just remember, you have done nothing wrong!
How close to this area is your house being built?
Re: Who is responsible for this? Pictures work now!35
Apr 18, 2014 11:49 am
We don't want a retaining wall, as such. We just want it made safe. I'd be just as happy if he returns his garden to the original level. It really doesn't worry us what he does.
Our house will be about 2m away from this area. There are sliding doors opening into it and we will have a small courtyard there.
Colourbond on top of the original retaining wall would be fine with us.
Re: Who is responsible for this? Pictures work now!37
Apr 18, 2014 3:00 pm
We didn't excavate at all. That was the base of the retaining wall. The ground level on our property has not been changed.
Re: Who is responsible for this? Pictures work now!38
Apr 18, 2014 3:54 pm
I would approach municipal building surveyor and advise that there has been building collapse.
I would expect that he would investigate and put emergency order on the adjoining owner because the matter is a danger to life and property.
I would be asking if adjoining owner had building permit.
In my view building works(landscaping ) that increases load on existing retaining wall requires building permit and would have required re engineering and rebuilding of the wall.
I think they are all playing poker with you hoping you blink.
Foremost Building Expert in Australia,assisting with building problems/disputes, building stage inspections,pre-contract review advice for peace of mind 200 blogs http://www.buildingexpert.net.au/blog
Re: Who is responsible for this? Pictures work now!39
Apr 18, 2014 4:00 pm
The potential force against that wall during heavy rainfall would have been significant and the situation your neighbours created was a disaster waiting to happen.
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Re: Who is responsible for this? Pictures work now!40
Apr 18, 2014 4:07 pm
They've been using your carport wall as a retaining wall. You are lucky the collapse didn't happen sooner. Your neighbours have changed the height of their block and haven't retained it so they are 100% at fault
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