This blog is not an authoritative interpretation of the law; it is intended as a general guide.
In this blog, in order to determine whether any sections of The Party Wall etc. Act 1996, are automatically “invoked”, Icon Surveyors will be considering what “invoked” means, and how it affects both a building owner and an adjoining owner’s rights under the Act.
What does the Act being invoked mean?
In the simplest of terms, to “invoke” is to carry out certain actions that have been stipulated by law or other means to put into effect certain rights or furthering actions.
In order to “invoke” a party’s rights under the Party Wall etc. Act 1996, a building owner has a statutory duty to serve a Party Wall Notice on all and/or any adjoining owners for any works that they wish to carry out in accordance with the Act.
Under the Act there are three types of Notice that a building owner is legally required to serve upon any or all adjoining owner’s prior to commencing any intended works. These are a;
- Line of Junction Notice under section 1 of the Act
- Party Structure Notice under section 3 of the Act; and
- Adjacent Excavation Notice under section 6 of the Act
Failure to serve any of these Party Wall Notice’s on an adjoining owner will prevent the rights afforded to an adjoining owner under the Act from being enforced. This was determined by Mr Justice Eyre in the recent case of Shah v Ken Power & Lee Kyson [2022] EWHC (QB) 209, where he held that a dispute in accordance with section 10 of the Act cannot be considered to have arisen without a building owner first serving a Party Wall Notice in accordance with the Act. This is because the Act is not “invoked” unless a Notice has been served as any notifiable and/or permitted works carried out under the Act must flow from the service of a building owners notice.
Under section 10 of the Act, both a building owner and an adjoining owner have the statutory right to appoint a surveyor to determine any disputes that may arise. However, where a building owner fails to serve a Party Wall Notice in accordance with the Act, the Act itself has not been invoked and therefore limits the remedies available to a party that has suffered damage as a result of the building owner’s breach. Thus, the only available remedy to a party who finds themselves in a position of suffering a loss and/or damage as a result of a building owner’s breach of the Act is to seek injunctive relief from the Court on the grounds of loss and/or damage caused as a result of the building owner’s breach of statutory duty.
Therefore, in answer to the question, the Act is not automatically “invoked”.
Icon Surveyors are happy to provide a free consultation to any building or adjoining owners who may be affected by the subject matter raised in this blog.
