Rashid & Anor v Sharif & Anor

A wall replacing a boundary fence and built on the boundary is a party fence wall. Its long-standing presence does not establish adverse possession by either adjoining owner. Substantial unauthorised demolition and rebuilding of such a wall, without consent or compliance with the procedures under the Party Wall etc Act 1996, constitutes trespass.

A mandatory injunction is not automatic for a modest trespass. Where demolition would be disproportionate and the claimant has no practical access to the affected area, damages in lieu may provide the appropriate remedy.

The owners of 16 Rutland Road claimed that the owners of the adjoining rear property at 11 Dudley Road had trespassed by demolishing a historic brick wall and using its line as the north wall of a new shed. They sought damages and a mandatory injunction requiring removal of that wall.

District Judge Langley found that the historic wall stood wholly on the claimants’ land, held that its demolition and replacement was a trespass, and granted an injunction requiring removal of the shed wall and reinstatement of the historic wall. The defendants appealed.

The central issue was whether the historic wall was wholly on the claimants’ land or a party fence wall on the boundary, and, if trespass was established, what remedy was appropriate.

1. Appeal allowed in part. The defendants remained liable in trespass, and their counterclaim was dismissed. The mandatory injunction was set aside and damages of £300 were awarded in lieu.

2. The trial judge erred in finding that the historic brick wall stood wholly on the claimants’ land. The former owner’s written evidence was that he had replaced a wooden boundary fence with a wall in the same line. His maintenance of the wall did not show that it lay wholly within his land. The accepted evidence that the wall coincided with the boundary, together with its width, supported the natural inference that it was a party fence wall.

3. The wall’s presence for many years did not give the claimants adverse possession of the part situated on the defendants’ land. It therefore could not support the trial judge’s alternative conclusion on that basis.

4. By demolishing the party fence wall and constructing a taller replacement forming part of their shed, the defendants carried out substantial works to it. The trial judge had rejected the alleged consent. The defendants had neither served the appropriate notices under the Party Wall etc Act 1996 nor followed its procedures. The works were consequently a trespass, although narrower than the trespass found below.

5. The trespass was very modest. The claimants’ own shed and adjoining wall prevented access to the affected area. A mandatory injunction requiring demolition could not stand. Damages in lieu, assessed at £300, were the proper remedy. Each party was to bear its own costs of the claim, counterclaim and appeal.

• Court of Appeal (Civil Division) Allowed the defendants’ appeal in part, upheld liability for trespass on the narrower party-wall basis, set aside the mandatory injunction, and substituted £300 damages in lieu: [2014] EWCA Civ 377.
• Central London County Court District Judge Langley found that the historic brick wall stood wholly on the claimants’ land, found trespass, dismissed the defendants’ case, and granted a mandatory injunction requiring removal of the rear shed wall and reinstatement of the historic wall.