A recent case has highlighted the strict limitations that apply
to party wall dispute procedures.
To go back to basics: if you are intending to carry out works (as
the 'building owner') which may affect a wall, structure,
fence or foundations shared with a neighbour (the 'adjoining
owner'), you need to instruct a surveyor to advise whether the
works are 'Party Wall Works' within the meaning of the
Party Wall Act 1996. If they are, it is critical to serve party
wall notices on the adjoining owner before carrying out the
proposed works. Our experience shows that by taking this step, you
can sidestep expensive, stressful and sometimes complex litigation
further down the line.
If the adjoining owner consents to the works, this must be recorded
in writing. However, this is unusual. It is standard practice for
the adjoining owner not to consent and a deemed or actual dispute
will then arise under the Act. Alternatively, he can serve a
counter-notice requiring modifications to the proposed works.
The Act contains a cost-effective procedure for resolving party
wall disputes by surveyors. Providing the Act is properly invoked
by the service of the notice, the parties' surveyors can
resolve any disputes relating to party wall works and record
agreement in a 'Party Wall Award'. An Award can prescribe
the manner in which works can be done, and / or order the payment
of damages.
Resolution of disputes
Surveyors do not have jurisdiction to resolve disputes where the initial party wall notice:
- was only served after the works commenced; or
- did not specify the works which are being disputed.
The party wall notice therefore has to describe the extent of
the works accurately and fully for the statutory dispute procedure
to apply.
In these circumstances any claim for damages caused by the works
would need to involve formal court proceedings against the building
owner, based on trespass, negligence, nuisance and / or breach of
statutory duty. Bringing and defending such claims can be costly
because each party will need to prove its case by relying on expert
evidence, generally from a surveyor and a structural engineer
(depending on the nature of the claim).
Limitations affecting the adjoining owner
As the recent case of Bridgland v Earlsmead Estates
Limited [2015] clarified, an adjoining owner's statutory
counter-notice cannot prescribe the manner in which the proposed
party wall works are carried out. The counter-notice can only
require additional works to the party wall, fence or structure
itself.
The case also confirmed that a claim brought by the adjoining owner
for 'unnecessary inconvenience' suffered because of a
building owner's party wall works should be dealt with by the
parties' surveyors according to the statutory dispute
procedure. The court cannot resolve this kind of claim in the first
instance.
We have a great deal of experience of Party Walls and the issues
raised by the Act. We often deal with situations where surveyors do
not have jurisdiction to act, and also have experience of appealing
Party Wall Awards in court. If you or anyone you know needs advice
on such matters, please get in touch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.