A Building Owner’s basement conversion works damage the party wall to such an extent that the remedy is partial re-building.
The Adjoining Owner elects to receive a payment in lieu of the repair as they don’t trust the Building Owner’s contractor to undertake the works.
Prior to carrying out the repair does the Adjoining Owner (now Building Owner) need to serve notice on the Building Owner (now Adjoining Owner)?
This is another question that was raised at a recent FPWS North London forum meeting which I helped to organise. I would welcome the views of other surveyors. If you are a surveyor involved in party wall matters and would like to attend future meetings please email me at firstname.lastname@example.org and I’ll keep you updated.
Where a Building Owner is required to make good damage caused by his works Section 11(8) of the Act gives him the right to request:
that the expenses of such making good be determined in accordance with section 10 and paid to him in lieu of the carrying out of work to make the damage good.
Much to the annoyance of Building Owners who would prefer their builder to make good, Adjoining Owners often exercise this right. Unsurprisingly, Adjoining Owners are reluctant to allow the builder whose clumsiness or poor workmanship caused the problem to put it right. They are not compelled to have the repair carried out immediately and could even decide to live with the damage until they next decorate and spend their compensation on a weekend away.
The situation described in the question is more complicated as the repair will certainly have to be carried out and the Adjoining Owner will require access to the Building Owner’s property.
Although the repair works are a result of the Building Owner’s original works all the Building Owner need do to fulfil his duties under the Act is to settle the agreed payment in lieu. It will therefore be necessary for the Adjoining Owner (now Building Owner) to serve a notice for the repair works and the Building Owner (now Adjoining Owner) may well choose to dissent and appoint a surveyor.
The payment in lieu should allow for the full costs of the repair including estimated surveyors’ fees if the works are notifiable under the Act.
One potential complication that is not mentioned in the question is the timing of the repair work. Is it fair to ask the original Building Owner to pause his works while the original Adjoining Owner takes several weeks or months to arrange and execute the repair? It would be difficult for the Building owner to complain in the circumstances.
Where there is no doubt over responsibility for the damage or the scope of repair the Building Owner may decide to take the initiative and serve notice to re-build the party wall. In that way he removes the option of the Adjoining Owner requesting a payment in lieu for the re-building of the wall (although the internal damage may still be dealt with in that way) and has a greater control over the timing of the repair works.