What to do when your neighbour ignores the party wall act

It is not uncommon to discover that your neighbour has gone ahead with building works that technically fall under party wall legislation. Indeed, at Peter Barry Surveyors, we are used to getting two or three phone calls a week from Adjoining Owners whose neighbours are carrying out qualifying works without having served notice as legally required by the Party Wall Act.

The Party Wall Etc. Act 1996 broadly covers three distinct types of notifiable work:

• Alterations to party structures, such as walls separating terraced or semi-detached houses, which can in turn be divided into flats
• Excavation work within 3m that is lower than existing neighbouring foundations
• New walls constructed on boundary lines

Neighbours who have not been served notice by the Building Owner are usually surprised to hear that there are no penalties for such behaviour and that the only recourse they have is to apply to the court for an injunction. What’s more, obtaining an injunction to stop notifiable works is often considered to be an extreme measure by those affected. The upfront costs involved can be expensive and there’s a risk that by the time a solicitor is consulted the offending works have already been finalised. Bear in mind that, although a project such as a loft conversion may take 6-8 weeks or more to complete, the part of the works covered by the Act – in this case, inserting beams into the party wall – may well be completed within a single 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 must be served either 1 or 2 months before work is due to commence, depending on which section of the Party Wall Act applies. If there’s scaffolding going up next door, or your neighbour is breaking up the patio in readiness for an extension, and you have not received a formal party wall notice, this is the time to take action.

Speak to your neighbour as soon as you can and find out what they are proposing to do. A few friendly words before the work commences may be enough to encourage the Building Owner to make some enquiries about the Act and do the right thing. Don’t wait until the builders start cutting holes in the party wall or dig foundations for the new extension.

In our experience, Building Owners who go ahead with notifiable works without serving notice as required fall into two camps: those who are unaware of the Party Wall Act and the statutory process that must be followed, and those who think that their neighbours are unaware of the Act. A friendly chat before the proposed works commence can put them straight on either count.

Of course, if you have received a party wall notice, you may decide to consent. This is your prerogative and, for many Adjoining Owners, can be the sensible thing to do. The important point is that you must be given the opportunity to consent (or not, as the case may be) in the first place.

If your neighbour has completed the works 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.

It may be encouraging to hear that the courts are taking a dim view of Building Owners who 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.

Peter Barry Surveyors are recognised experts in the complex area of party wall matters and we routinely advise on all issues arising from the Party Wall Act. If you wish to discuss any building works that may be affected by the Act, either as the Building Owner or an Adjoining Owner, please don’t hesitate to contact us for specialist advice and assistance.