I have previously written about the option of an adjoining owner applying for an injunction where their neighbour has commenced work covered by the Party Wall Act without serving notice. However, the costs of obtaining an injunction can be significant, may not be recoverable in full and such would only be justified where there is a real danger to the adjoining owner’s property. When I explain this to adjoining owners their response is generally along the lines of ‘so what’s the point of the Act then?’ and I understand their frustration. So today I wanted to consider an alternative approach?
It had long been thought that for a surveyor to be appointed under the Act a notice must have been served and been dissented to (either specifically or a deemed dissent). This was the view taken by the judge in the case of Louis v Sadiq who stated that “the agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter … to which a notice [my emphasis] under this part of this Act…relates”.
However, as that case was from 1974 it was decided under section 55 of the London Building 1939 rather than the 1996 Act which now applies. The corresponding passage in the current Act reads as follow “the agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter…which is connected with any work to which this Act relates”. You’ll note the absence of any reference to a notice – the wording is deliberately broader and suggests that surveyors can be appointed and make awards even where notices have not been served.
Now, it should be appreciated that in by far the majority of cases the sequence remains notice, dissent, appointment of surveyors, award and that’s certainly the most logical approach but the wording of the Act does not preclude the appointment of surveyors where the building owner commences work without serving notice.
To explore how this might work let’s look at the practical steps in a scenario where an owner has commenced work to which the Act relates but has not served notice:
It’s by no means ideal for a surveyor to instigate party wall procedures with an uncooperative building owner but if a work has commenced without notice and the adjoining owner is not inclined to apply for an injunction it may be the best option available.
If you find yourself in this situation please do not hesitate to contact us for advice either on 020 7183 2578 or by email.