Friday, 23rd October 2009
We get 2 or 3 calls most weeks from people that have a neighbour that has gone ahead with work which comes within the scope of the Party Wall Act without serving notice.
They are surprised to hear that there are no penalties for such behavior and their only remedy is to apply to the court for an injunction. Gaining an injunction seems to most neighbours to be an extreme measure – the upfront costs are prohibitive in many cases and often by the time a neighbour gets around to speaking to a solicitor it is too late anyway as the notifiable works have been completed.
In case you are unaware (as many party wall surveyors and solicitors are), it is very difficult to authorise work retrospectively under the Act. Notice cannot be served after the work has been completed and as the Act is invoked by the serving of notice there cannot be a party wall award without notice.
Party Wall notices have to be served either 1 or 2 months before work is due to commence depending upon which section of the Act applies. So, if you see scaffolding going up at your neighbour’s property and you have not received a notice, that is the time to Act – don’t wait until the builder starts cutting holes in the party wall before speaking to the owner. Likewise, if your neighbour starts breaking up their patio in readiness for an extension pop round and ask them whether they intend to serve notice. A few words before the work commences may be enough to encourage a building owner to make some enquiries about the Act.
In my experience Building Owners that go ahead with notifiable works without serving notice fall in to one of two categories – those who are unaware of the Act or those who think that their neighbours are unaware of the Act. So a friendly chat before work commences puts them straight on either count.
Having said all that you may, having received the Party Wall notice, decide to consent – that is your prerogative and can for many adjoining owners the sensible thing to do. The important point is that you must be given that opportunity in the first place.
If your neighbour has completed their work without serving notice they are by no means off the hook. They will still have a duty of care under common law to put right any damage that their works cause.
The courts have taken a dim view of Building Owners that proceed with work without serving notice and go on to cause damage to a neighbour’s property. In one noteworthy case, known as Roadrunner Properties Limited v John Dean the judge made it clear that the Building Owner should not gain advantage by his failure to comply with the statutory requirements. In light of this he decided that the burden should be on the Building Owner to disprove a link between the damage and the work instead of the reverse which would be the normal position at common law.
So Building Owners, think twice before ignoring The Party Wall Act.
Author: Justin Burns