Thank you for clicking on today’s Property Surveying blog post topic. Through this week’s informative blog post we are going to be discussing party wall surveying procedures.
Particularly, we are going to be looking at the unfortunate and relatively common scenario that occurs when a building owner commences party wall construction works to their property without serving the necessary Party Wall Notice upon the adjoining owner after those works commencing.
Under the Party Wall etc. Act 1996, the legal responsibility and duty for the service of a Party Wall Notice rests upon the building owner. In order for the Act to be invoked and the protections afforded to an adjoining owner, the key and pivotal point within the party wall procedures is the service of the party wall notice.
The service of the Party Wall Notice formally invokes the Act upon the adjoining owner, giving them the legal right of response to that Party Wall Notice that the Act affords them.
These legal rights of response are as follows:
Party Wall Notice Responses
- Consenting to the Party Wall Notice
- Dissenting to the Party Wall Notice and appointing an agreed surveyor
- Dissenting to the Party Wall Notice and appointing their own party wall surveyor.
These rights will only exist when a Party Wall Notice is served, without the Notice being served the adjoining owner is unfortunately left in the scenario whereby they can only rely upon common law to best protect them.
So what happens if the adjoining owner notices that the building owner has started work and hasn’t served a Party Wall Notice upon them?
As set out at the start of this blog, this is actually a common scenario. Our take on it here at Stokemont, is that most of the time it is a convenient misunderstanding, as the press and advice surrounding party wall requirements and procedures is so significant and prevalent these days.
It is also incredibly likely that going through the course of the lead-up to their planned construction works, the building owner is going to have ample opportunity in situations whereby their professional advisers point out and flag up the need to go through party wall surveying procedures.
These professional advisers are likely to include, however are not limited to;
Architects, engineers, planning consultants, Listed Building consent consultants, permitted development consultants, contractors.
It is common practice for one, if not all of these professional advisers to gently point out a building owner’s need for party wall notice to be served, and therefore with that in mind it is usually highly unlikely that a building owner would overlook these, as the run up to construction works is often so carefully considered from both a cost and time perspective.
However, irrespective of the lead up to what resulted in the non-service of a Party Wall Notice, if the adjoining owner finds themselves in the unfortunate situation where this occurs what are the options open to them?
The first option that an adjoining owner has open to them is to pursue the building owner through a party wall injunction. A party wall injunction is the most formal approach that an adjoining owner can take and will effectively see them having to go to the courts in order to obtain a court order that will formally stop the building owner from progressing any further work on site until the necessary legal procedures have been adhered to and followed. One of the biggest risks of the party wall injunction is the costs an adjoining owner will have to take on in the first instance to obtain the party wall injunction, average costs being upwards of £5,000 plus VAT for a reputable solicitor or barrister.
However, once they have got the party wall injunction, they will also have to underwrite the costs risk in the scenario whereby the building owner is able to prove that the Party Wall etc. Act 1996 did not apply and the injunction was improperly served.
This costs risk would include:
- Contractor liquidator damages
- Temporary accommodation if the building owner is not residing at the property
- Extended street licenses for any scaffolding or skips
- Any other bona fide costs resulting from work delays.
This is not a small undertaking to give and generally speaking your average construction site even for your most straightforward of jobs is likely to have in excess of over £1,000 per day which ultimately if properly proven, an adjoining owner could find themselves liable to bearing the costs of.
These costs would also not just be restricted to the day-to-day construction costs, but also the professional fees that a building owner will need to incur as a result of responding to the party wall injunction.
With all that being said, party wall procedures are relatively straightforward, and the Act is explicit in what works are and are not covered by it.
So long as an adjoining owner is well advised and under good advice from a reputable party wall surveyor that the works that are taking place are indeed covered by the Party Wall etc. Act 1996 there is very little risk in progressing to obtain a party wall injunction.
The second option that an adjoining owner has open to them once a building owner commences works without serving a Party Wall Notice is to instruct their own party wall surveyor on a private basis.
The party wall surveyor will usually undertake a Schedule of Condition of the adjoining owner’s property, to ensure that there is an adequate record and protection statement in place. This protection statement would become critical and key in the event of any claim for damage or issue further down the line.
Again, the risk an adjoining owner carries with this is that they are going to need to bear the cost of the party wall surveyor’s fees and therefore they will need to be prepared to undertake this in the first instance.
Party wall procedures can be stressful, especially if an adjoining owner finds themselves in a scenario whereby their counterpart the building owner hasn’t served a Party Wall Notice upon them.
It goes without saying, that in many cases opening the channels of communication between the building owner and adjoining owner can go a significant way to avoid cost for an adjoining owner.
We would therefore advise that adjoining owners make effort to discuss matters with the building owner as soon as possible in the unfortunate event that party wall works start without a Party Wall Notice being served.
If you would like to discuss your party wall surveying procedures with our team of experienced and qualified party wall surveyors, please feel free to give us a call today and we would be more than happy to assist and advise you.
