We get 2 or 3 calls most weeks from owners whose neighbour 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 behaviour and their only remedy is to apply to the court for an injunction. Gaining an injunction seems to most owners to be an extreme measure – the upfront costs are prohibitive in many cases and there’s a risk that by the time they get around to speaking to a solicitor it is too late anyway as the notifiable works have been completed. Bear in mind that although a project such as a loft conversion may take 6 to 8 weeks to complete, the part of the works covered by the Act – cutting beams into the party wall – may well be completed within one day.
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 typically invoked by serving notice there cannot generally be a party wall award without notice. It has been argued that the 1996 Act removed the explicit link between the service of notice and the appointment of surveyors but case law on that point is conflicting and the normal order of things remains notice, appointment of surveyors, award.
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 building 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 be 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!