In this week’s property surveying blog, we will be discussing what the possible outcomes associated with not having a Party Wall Agreement in place. Here at Stokemont, our Party Wall Surveyors find themselves confronted with this question week in, week out!
Once a building owner planning works has obtained planning permission for your construction proposal, if it’s found that the works fall under the realm of the Party Wall etc Act 1996.
The works above would require a Building Owner intending to carry out any of these works to notify any applicable neighbouring properties by serving a Party Wall Notice.
If the works are to be directly to the Party Wall, Notice would need to be served 2 months before the planned works.
If the works are to be directly to the Party Wall, Notice would need to be served 1 month before the planned works.
Once an option has been selected from the three available to an adjoining owner which includes:
- Consenting to the Notice
- Dissenting, with the Agreement of an Agreed Surveyor
- Dissenting, with the appointment of an independent Surveyor
The next stage would be to arrange for access to the neighbouring properties in order for the Schedule of Condition Report to undertaking either by the surveyor or surveyors, if two are included within the procedure.
Following this would be the agreement of the Party Wall Agreement.
So, what is a Party Wall Agreement/Award?
A Party Wall Award, also commonly referred to as a Party Wall Agreement, is essentially the finalising document bringing closure to the procedure and is the legal document which is agreed upon by Surveyors upon appointment under Section 10 of the Act on behalf of building owners and the adjoining owner.
At this phase, of the procedure, a building owners’ surveyor will draft the legal agreement which would be tailored to include all the necessary clauses concerning the construction proposal.
An award may determine/included but not limited to:
- The right to execute any works
- Time executing those works in relation to the Act
- The means of protecting the adjoining property
- Methodology of those works – method statement
- It should also include contain a record of the condition of the adjoining property in the form of a Schedule of Condition Report before the work begins. As previously discussed, this is desirable as it can assist in identifying and attributing any damage to adjoining properties for instance.
If it happens that the procedure includes two surveyors as a result of the adjoining owner(s) dissenting and appointing their own surveyor, this draft Agreement will be then sent over to the adjoining surveyor as the formalities of the Act require the surveyor appointed on behalf of the adjoining owner(s) to review and comment upon the circulating and travelling document, with any suggestions or additions they would like to include.
At this phase, at times there could be elements of some back and forth between both surveyors which include requests and amendments with respect to the Award and overall proposal ultimately leading to agreement on the Party Wall Award.
Once agreed, all documentation will be complied and served upon all owners. With all legal protections in place, the building owner(s) can then press ahead with the works.
What happens if works proceed with no Party Wall Agreement in Place?
There are a number of problems that can come with not having a party wall agreement in place from the perspective of both a Building Owner and an Adjoining Owner.
Building Owner:
- The lack of protection against false claims of damage due to an absence of a Schedule of Condition report.
- Possible major delays to works if the adjoining owner proceeds to obtain Party Wall Injunction via the courts.
- Major cost implications if works have to halt.
- Tension with neighbours.
- No legal means of access to the neighbouring land if necessary. Section 1 of the Act legally provides access to the adjoining land if necessary to complete works.
- A lack of means of arbitration.
Adjoining Owner:
- The lack of protection against damage that may be caused due to the neighbouring works.
- The lack of a Party Wall Agreement may result in issues when endeavouring to sell your property as a purchaser would feel hesitant to buy into a property with no protections in place.
- Possibility of incurring the cost for rectifying damages that you did not cause.
- No specified limitations/restrictions on construction working hours or the use of pneumatic tools concerning the Party Wall.
As listed above, there are many issues related to not having a Party Wall agreement in place.
To many adjoining owners’ disbelief, once the building owners’ notifiable works have started and have been completed there are no penalties enforceable in accordance with the Party Wall etc Act 1996 to the building owner for not serving notice per se.
However, it happens that the building owner is caught amid the works by an adjoining owner with the notifiable works being yet to have been completed, the only legal redress available in this respect is to obtain a Party Wall Injunction.
However, injunctions do bring you some element of risk as an innocent adjoining owner, solely because injunction can cost a large sum of money to attain. Furthermore, the injunction could also lead to severe delays in the building owner’s construction works leaving an adjoining owner liable for the delayed construction costs.
Regrettably, it doesn’t stop there. If it turns out that the injunction was unnecessary you will also be responsible for paying the building owners’ legal fees.
For this reason, it is heavily advised that prior to applying for a Party Wall injunction you seek advice from an experienced Party Wall Surveyor to assess whether the works of the building owner are notifiable under the Act.
If you find yourself in this position and you believe your property has been damaged as a result of the building owner’s construction works, it is advised that you seek advice from an experienced Party Wall Surveyor who can determine whether the damage is a result of the building owner’s work.
If the Party Wall Surveyor believes that the damage is a result of the works, then you will be able to claim compensation through the courts with assistance from a competent solicitor.
If you believe your neighbour is intending to carry out construction works that you believe are notifiable under the Act, please do not hesitate to get in touch with our highly qualified and experienced team of surveyors today. We are more than happy to give our professional opinions and advice to put your worries at ease.
