LEGAL CORNER
Our Once and Green Pleasant Land By Owen Hill, Consultant Solicitor
I
t was not that long ago that our beautiful county was a wealth of
rolling green hillsides. Then builders set about terracing the hillsides to provide level platforms for houses.
The engineering required to deliver building plots frequently led to the creation of retaining walls. If you Google the words “landslip and retaining walls”
you will find a reputable advisor in the insurance industry explaining that often just after a storm, insurers are inundated with claims as a result of retaining walls having failed and that these claims are nearly always rejected. When the retaining wall was originally designed, it was
probably adequate for the purpose, but over tens or hundreds of years, it will have deteriorated and, in the absence of maintenance and re-pointing, will ultimately fail. The insurers will say that the failure was not caused by the storm – which is an insured risk under property insurance – but was caused by the lack of maintenance which is not an insured risk. Devon is littered with retaining walls and just about
every time the issue arises in a property transaction, it is almost impossible to tell which of the adjoining owners is responsible for the wall. This is because our land registry
A Gift of the Heart
By Marinella Hollies, Partner With Valentine’s Day behind us,
maybe you’re still basking in the glow of receiving a card or a gift and assurances that someone has
‘given their heart’ to you. This time of year always makes me consider the importance of a more profound gift of the heart. Over the years I have met with a number of clients who
have asked me to include an organ donation request in their Wills. I had to explain this as sensitively as possible that by the time their Will was found and read, their organs would have passed their “used by date”; that always prompts a smile. But your Will is the right place to leave a financial legacy
or benefit to somebody that you care about or for a worthy charitable cause and there is no reason why you cannot include your wishes as to how you would like your body to be used for the benefit of others. This can be by way of organ donation or of whole body donation for medical research. nhs records show that more than 10,000 people in the uK currently need a transplant. Of these, three a day will die waiting as there are not enough organs available. I have a friend who will soon need a transplant. Bizarrely she has to become more unwell before she will qualify but when that time arrives, it will be a race against time. If you have made a Will, you have already given a great deal of thought as to how you can help family, friends and
others financially after your death. But I would suggest that equally important should be the possibility that you can give the gift of life to somebody. That person will be a complete stranger but they and their family will be indebted to you forever. you only need to read the heartrending stories on the nhs Organ Donation site at
www.organdonation.nhs.uk to see the amazing difference your decision can make. There are a number of ways in which you can join the
Organ Donor register and these are explained on the nhs website but remember to always carry your Organ Donor card. If you make the decision to become an organ donor,
you should really consider discussing this with your family. most relatives agree to organ donation and with the introduction of the human Tissue acts on 1 september 2006, which makes the wishes of the donor paramount, the hope is that more families will be encouraged to respect their loved one’s wishes. It is therefore important that you discuss your organ and tissue donation with your family so that if the situation arises, they will find it easier to confirm your wishes to nhs professionals. I realise that this piece doesn’t strictly deal with legal issues in the usual way but perhaps it may prompt you to give some thought, not only to your financial affairs on your death but also how your death could make a vital difference to somebody’s life.
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operates using red lines on ordnance survey plans and the scale of the plans are such that the red line represents about 2 meters width on the ground. There is very rarely any detail given in old Deeds, so
in the absence of neighbours agreeing that the cost of repair and maintenance shared, there is uncertainty. This is a potentially dangerous state of affairs because if the liability to the wall is yours, you might want to address it before it fails and if the liability for the wall is your neighbour’s then you might want them to address it before it fails - but they may find out that their insurers are not interested. some of the textbooks on the subject suggest that there
is a common law assumption that the neighbour with the land that benefits from the support of the retaining wall should be regarded as the one with responsibility but this assumption only appears to apply if there is no contrary indication in the Deeds and documents. This issue has come up in the middle of a few
transactions that I have dealt with recently. On each occasion, the clients suffered frustration and delays. If you have ever wondered who might be responsible for the retaining wall that supports or protects your property then now might be a good time to find out.
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