Party Wall Procedures – Alternatives to Injunctions

Sunday, 11th February 2018 | by: Justin Burns

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:

  1. It first needs to be established that the works are definitely covered by the Act. Without access to the building owner’s property it may be difficult to establish but if an owner has nothing to hide they should be agreeable to the work being inspected. If the works have planning consent, the drawings (which can be downloaded from the relevant planning portal) will assist.
  2. If it is confirmed that notice should have been served the adjoining owner can appoint a surveyor. This would also be the case if an invalid notice was served or in a scenario where notice was served but the building owner commenced work either before it was consented to or surveyor(s) appointed.
  3. An important next step is to record the condition of the adjoining owner’s property so that any damage which may occur can be easily identified. Had the proper procedures been followed the building owner would cover that cost but without notice that cannot be guaranteed. If we are appointed at this stage we are normally happy to share that risk with the adjoining owner.
  4. Was the failure to serve notice a genuine mistake by the building owner? If so the owners can sign an agreement confirming that the works already undertaken are to be treated as if they had been properly notified. Matters can then progress in accordance with normal procedures.
  5. If the failure to serve notice was (or appears to have been) deliberate and the building owner subsequently refuses to cooperate (or more likely remains silent and ploughs on) the risk of damage must be assessed (we can endeavour to do this while recording the schedule of condition). If the risk is high the priority must be to protect the adjoining owner’s property and an injunction should therefore be considered. If the risk is low the adjoining owner can request that the building owner appoint a surveyor within 10 days in accordance with section 10(4) of the Act. Should they fail to do so the adjoining owner can make that appointment on their behalf.
  6. In that scenario the appointed surveyors can only agree an award authorising works (including retrospectively) if those works are capable of being so authorised but they can also make awards dealing with other matters arising such as disputes over damage occasioned by the works, enclosure expenses payable and surveyors’ fees.

It’s by no means ideal for a surveyor to instigate party wall procedures with an uncooperative building owner but if 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.

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