Thank you, for clicking on today’s Property Surveying blogpost. In today’s informative surveying post, we are going to be looking at party wall surveying procedures.
Here at Stokemont, while we undertake a wide variety of different surveying work on a daily basis, by far one of the most frequent and common forms of work that we undertake is party wall surveying.
Party wall surveying is a highly complex area of the surveying profession, owing to the fact that it blends a unique understanding of both construction knowledge, legal understanding and importantly mediation and resolution.
Party Wall Notices are required prior to a building owner undertaking their proposed construction work. The Party Wall Notice itself formally invokes the Party Wall etc Act 1996 upon an adjoining owner, importantly giving them the legal protection that the Act affords them.
One of those legal protections is the right to dissent to the Party Wall Notice and appoint a party wall surveyor. That party wall surveyor’s role being to review the building owner’s works from the perspective of the adjoining owner’s property, ensuring that they pose the least amount of risk possible.
Service of the Party Wall Notice also gives the adjoining owner cost protection, as they will not be liable for the party wall surveyor’s reasonable costs, and are able to recover these and claim these against the building owner through the course of an agreement of a Party Wall Award.
So, the key part of the party wall procedure, is that a Party Wall Notice is served by the building owner upon the adjoining owner. However, this can often be overlooked, conveniently or otherwise, resulting in a scenario whereby the adjoining owner does not have the legal protection that the Act affords them.
In this type of situation, an adjoining owner’s rights and options are limited, we are now going to be taking a look at these in a bit more detail, so that if you find yourself in the unfortunate position where this has occurred, you are fully abreast of your options.
The first option you have to continue, is to privately instruct your own party wall surveyor to assist. This party wall surveyor’s role will be to very much review the works from the perspective of your property, however, the key distinct difference being that they are unlikely to have been given any information by the building owner themselves. There is a limit to what a party wall surveyor can do in this scenario, and the value they can add, as they will likely be working with a limited pack of information, usually what can be obtained through discussion, or alternatively public forums such as the Planning Portal.
The party wall surveyor acting on your behalf will undertake a Schedule of Condition report prior to the works commencing, or at the earliest opportunity if works have commenced, that Schedule of Condition acting as the record and body of proof in the event of any issue or damage further down the line.
The party wall surveyor will also be able to undertake site inspections, however, it should be worth noting that unlike the protections that a party wall surveyor is given under the Party Wall etc Act 1996, the building owner does not need to allow the party wall surveyor access on the site, and in any case this is actually quite rare that the surveyor will be given rights to visit or inspect the building owner’s works.
The second option, is that the adjoining owner proceeds to the Courts, to obtain a Party Wall Injunction. The Party Wall Injunction is effectively a Court Order, which will formally injunct the works on site, stopping the building owner from being in a position to legally progress them any further.
This is very much a significant position that can arise, and in effect if the building owner chooses to overlook, ignore or simply not act upon the injunction as served, they are going to not only be in breach of the Party Wall etc Act 1996, but also in breach of the Courts, which can come with significant fine and legal action.
Once the Party Wall Injunction has been served, the building owner will then need to go through the necessary party wall procedures, including the service of a Party Wall Notice, Schedule of Condition Report, and ultimately the agreement of a Party Wall Award.
Unlike a conventional party wall procedure, the building owner is not only going to find that he is liable for the reasonable party wall surveying costs, they are also likely going to have to bear additional costs of a party wall surveyor, for having to step in, in the manner required, solicitor and/or barrister fees, and Court costs.
All of these costs are going to significantly increase the overall cost and time that the building owner will need to take into account during the course of their works, and prior to progressing them any further.
Party Wall Injunctions are common, and do occur, however the key consideration that an adjoining owner needs to take into account, is that there is never a guarantee of 100% cost recovery.
Unfortunately, while the Courts are there to regularise matters, it is impossible for them to fully award 100% costs, as there is likely always going to be a claim from the opposing side, in this case the building owner, that costs could have been more reasonable or towards the lower end of the spectrum.
However, that being said, so long as the adjoining owner has made the building owner well aware of the need for Party Wall Notices to be served, and their intention to progress matters through the Party Wall etc Act 1996 and via a Party Wall Injunction, if the building owner still opted to ignore that, they are going to have a difficult case proving to the Court that indeed cost recovery in full is not a reasonable position for the adjoining owner to take.
If you are considering getting a Party Wall Injunction, we would advise that discussions are had with both party wall surveyors and specialist barristers who have a firm and full understanding of the Party Wall etc Act 1996. As set out previously, a Party Wall Injunction is not to be taken lightly, and carries with it significant cost. Therefore, it is always advisable to ensure that you are fully abreast of the knock-on or consequential issues and risks in that regard.
In all normal circumstances, building owners will comply with party wall procedures and Party Wall Notices will be served, however there are always going to be scenarios where this is not the case. This is where a Party Wall Injunction is the perfect vessel and perfectly placed to assist an adjoining owner in this circumstance.
If you would like to discuss your party wall surveying procedures with our team of qualified and experienced RICS building surveyors and specialist party wall surveyors, please feel free to give us a call today, and we will be more than happy to assist and advise you.
