What to do when your neighbour ignores the party wall act
Friday, 6th January 2023
Party Wall Questions | Party Walls | Surveying
It is not uncommon to discover that your neighbour has gone ahead, or is about to go ahead, with building works that fall under party wall legislation without following the correct procedures. 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 the notice(s) legally required by the Party Wall etc. Act 1996.
The Act makes distinct types of work notifiable to affected adjoining owners:
- Alterations to party structures, such as walls separating terraced or semi-detached houses (which can in turn be divided into flats);
- Excavation work within 3.0m and lower than the foundations to adjoining structures;
- New walls constructed either up to or astride boundary lines.
If your neighbour, referred to under the Act as the ‘building owner’, is ignoring the Party Wall Act, how you react should depend upon how far they have progressed. Let’s consider 3 scenarios:
They are about to start qualifying work:
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 the building owner 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 the building owner 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 them to make some enquiries about the Act follow the proper procedures. Don’t wait until the builders start cutting holes in the party wall or digging foundations for the new extension. Always speak to the building owner rather than the builder. Some builders are experts at stalling for time and then declaring the works covered by the Act have been completed.
In our experience, building owners who go ahead with notifiable works without serving notice fall into one of two camps: those who are unaware of the Party Wall Act (and the statutory process that must be followed) and those who think their neighbours are unaware of the Act. A friendly chat before the proposed works commence will put them straight on either count.
If there’s time, we would be happy to write to the building owner on your behalf at this point, without charge, to explain the procedures. If they have not served notice because they are unaware of their obligations, a friendly letter from an experienced party wall surveyor may be enough to resolve the situation.
It’s still important to have a record of the parts of your property that are at risk from the proposed works in case something goes wrong. Ideally this would be a written schedule of condition with supporting photographs prepared by an experienced surveyor. You would have to cover the costs in the first instance but the building owner should reimburse you if they go on to serve notice. It will be money well spent if your property is damaged by the works. Please do not hesitate to call us on 020 7183 2578 to discuss.
They have commenced qualifying work but still have more to do:
You may be surprised to hear that there are no penalties for failing to serve notice and that the only formal remedy available to adjoining owners is to apply to the court for an interim injunction.
Work cannot be notified retrospectively under the Act, the ‘No Notice, No Act’ mantra is now firmly established in case law, but, if only some of the work has been completed a notice can be served to cover the remainder. If the building owner has not served notice because they think they can get away with it, a stern letter from us, explaining that they are acting unlawfully, may encourage them to pause the works and do the right thing.
It’s not an ideal situation but it’s better to have some of the works notified than none. Also, the owners can agree to treat the works that were undertaken unlawfully as if they had been notified. If we are appointed at this stage, we can assist with drawing up such an agreement for the owners to sign. Call us on 020 7183 2578 to discuss.
The qualifying work is complete:
Obtaining an injunction to stop notifiable works is often considered to be an extreme measure by those affected. The upfront costs involved can be prohibitive and there’s a risk that by the time a solicitor is consulted the offending works have already been completed. 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.
However, if the building owner 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 pay damages/compensation.
It may be encouraging to hear that the courts have, in the past, taken 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.
If you find yourself in this situation, it will be helpful to have a report from one of our experienced Chartered Surveyors summarising the damage caused by the works and setting out where the building owner has failed to comply with the Act’s procedures. The report will initially be sent to the building owner as part of your claim but can also be used to support legal proceedings.
Appoint a Party Wall Surveyor Near You
Peter Barry Surveyors are recognised experts in the complex area of party wall procedures, and we routinely advise on all issues arising from the Party Wall Act. If you wish to discuss any building works covered by the Act, either as the building owner or an adjoining owner, please don’t hesitate to contact us for some free specialist advice and assistance.
We have expert party wall surveyors across London and the South of England. Just click any of the following links to learn more about our services in areas near you:
