In this blog, Icon Surveyors will consider what a retrospective Party Wall Agreement or Party Wall Award is and how and when one is likely to be drawn up.
A retrospective party wall agreement is an agreement between the building owner(s) and the adjoining owner(s) that is drawn up by one or more surveyors who have been instructed by the parties to form an agreement for works that have been commenced and/or completed in breach of the statutory provisions under the Party Wall etc. Act 1996. (The Act), In other words, a breach for failure to serve a Party Wall Notice has occurred, or, failure to respond to notice has occurred and the parties have neglected to appoint a surveyor(s) under section 10 of the Act.
These measures are used in order to save time and hefty costs that may be incurred as a result of one or both of the owners being in breach of their statutory duty under the Act.
Although the formalities of section 10 of the Act are usually adopted when such agreements are drawn up, it cannot be said with any degree of certainty that such agreements are in fact enforceable under the Act. However, it may be enforceable and actionable under the civil law of contract.
It should be noted that the Act does not provide for any provisions to be taken retrospectively. This might be as a result of three factors; the first being that there is a statutory obligation for a building owner to serve a notice on an adjoining owner of any works that are proposed to be carried out under the Act. The Act also provides for any actions that are to be taken and the remedies available to the parties for any breach of their statutory obligations. Therefore, it would appear that any party seeking a remedy for damage caused to their property as a result of a building owner’s failure to comply with their obligations under the Act, may bring an action under the Act for breach of statutory duty, or, under the common law provisions of tort.
It should be noted that any claim for breach of statutory duty must be filed within 6 years of the date of the breach occurring. That being the date upon which the Party Wall Notice should have been served. An action under the common law of tort will need to be filed within 6 years of the date that the damage was caused, that is, the date upon which the works were alleged to have caused the damage.
The second factor to take into consideration is that of the jurisdiction of surveyors under the Act. Although surveyors are given an array of powers under the Act, there does not appear to be a power that enables a surveyor to act retrospectively in either the service of a Party Wall Notice or the making of a Party Wall Award. Icon Surveyors will look at this matter in more depth and post a further blog relating to it.
The third-factor one might consider is that the Act does not contain any provisions preventing parties from contracting outside of the Act. Therefore, it may be that parties, who find themselves in breach of their obligations under the Act but need a quick and cost-effective remedy for damage caused by the works carried out, are afforded the right to mitigate any losses by way of contract. This would save both time and hefty costs if either or both parties sought to remedy such matters through litigation in the Courts. After all considerations, the Act was put in place to prevent such litigation from occurring.
In the meantime, Icon Surveyors realise that the party wall matters discussed in this blog are of a complex nature and are therefore happy to provide a free consultation to any adjoining or building owner that may be affected by such party wall matters.