In this blog, Icon Surveyors will consider what a Retrospective Party Wall Award is and how it might help.
What is a Retrospective Party Wall Award?
In the simplest of terms,
A retrospective party wall award is effectively an award granted by a surveyor believed to be appointed in accordance with the provisions of section 10 of the Party Wall etc. Act 1996 for works that have already been carried out. Any award that is deemed to be retrospective is not legally binding under the Act. If such an award has been agreed by both parties, it is no more than a binding contract and is not enforceable as an award.
The Act provides that an award may be issued by a surveyor determining a right to execute works after a statutory notice has been served. Therefore, a surveyor does not have the jurisdiction to make an award and/or determine any matter if a notice has not been served and/or work has already been completed without a notice ever being served. Thus, the only remedy an adjoining owner has when a building owner fails to fulfil their statutory obligations under the Act is to seek injunctive and/or compensatory relief from the court. Shah v Power and another [2022] EWHC 209 (QB)
The above-stated case is interesting in that the surveyors’ community has always surmised that retrospective awards are both in accordance with the Act and valid. In Shah v Power, Mr. Justice Eyre determined that in order for a dispute to arise and/or a surveyor to be appointed under the provisions of section 10 of the Act and the Party Wall etc. Act 1996 had to be triggered. The burning question is; “Can the Act be invoked unilaterally so as to apply retrospectively to works already undertaken and in respect of which no notice under the Act has been served?”
In 2017, the claimant, Mr. Shah, carried out works on his property without serving a Party Wall Notice. The adjoining neighbor stated the works included the removal of a chimney breast that had caused damage to their property. In 2018, the adjoining neighbor unilaterally appointed the defendant surveyors, who made an award against Mr. Shah for damages caused to the adjoining neighbor’s property and costs. Mr. Khan appealed for the award. The County Court declared the award to be null and void. The defendant surveyor appealed the County Court’s decision to the High Court, where it was held that where there is "no notice," the Act is not invoked. This is because the “Act provides a mechanism for resolving disputes between building owners and adjoining owners, but here the claimant (Mr. Shah) did not purport to exercise the rights the Act gave to building owners. In that regard, the Act’s definition in section 20 of a building owner as “an owner of land who is desirous of exercising rights under this Act is of significance.” Icon Surveyors are happy to provide free party wall advice to any building or adjoining owners who may be affected by the subject matter raised in this blog.
