In this blog, Icon Surveyors will be considering what an adjoining owner can do whose property has been damaged by works being carried out by a building owner without a Party Wall Award in place.
In the simplest of terms,
It matters not whether a Party Wall Award was in place at the time that damage to an adjoining property occurred. What matters is that the damage caused to an adjoining property is a result of work being executed by a building owner pursuant to their rights under the Party Wall etc. Act 1996.
An adjoining owner in receipt of a building owner’s Party Wall Notice agrees in writing to the proposed notifiable works under the party wall act. In this situation, it is highly unlikely that a party wall surveyor will be called in to draw up a Party Wall Award. However, despite the lack of a Party Wall Award, the adjoining owner will be protected under the Act, as the building owner has a statutory obligation to make good any damage under section 11(8) of the Act.
A Party Wall Award is normally used as a pre-emptive safeguard to protect the rights of both the building and adjoining owners. The award is actually drawn up by Party Wall Surveyors under their statutory obligations pursuant to section 10 of the Act, to resolve a dispute that arises between the building and adjoining owners. Such disputes generally arise after a building owner has fulfilled their statutory obligations to serve any adjoining owner with a Party Wall Notice.
A Party Wall Award is an agreement that specifies the way in which work may be carried out. In other words, the agreed conditions pertaining to each of the parties' rights and obligations, such as, when and how the work is to be carried out and/or protective measures such as an insurance policy or an undertaking for the security of costs for any high-risk and/or foreseeable damage that may occur as a result of the work being carried out in the future. Within a Party Wall Award, there is usually a schedule of conditions pertaining to the condition of both the building owners and the adjoining owner’s properties prior to the commencement of any of the proposed works. The award also contains any required plans and/or permissions and insurance.
While it is true to say, without any shadow of a doubt, that any damage to an adjoining property arising from works carried out pursuant to the Act may be dealt with far more expediently when a Party Wall Award is in place, it is also true to say that both an adjoining owner and any adjoining occupier are protected under the Act, regardless of whether a Party Wall Award is in place.
Adjoining Owners have 3 Options in Case of Property Damage
There are three options open to an adjoining owner and/or occupier whose property has been damaged as a result of works being carried out under the Act.
- The first is to approach the building owner and request in writing that the damage is made good or is compensated monetarily in lieu of making good any damage under section 11(8) of the Act.
- The second is to appoint a Party Wall Surveyor under section 10 of the Act to resolve the dispute by way of making an award to either make good any damage or, in lieu of making good the damage award compensation. It should be noted that a building owner and/or adjoining owner is required under section 10 of the Act to appoint a surveyor when a dispute relating to party wall works arises. Icon Surveyors are of the opinion that subsequent damage to an adjoining property that has resulted from a building owner exercising their rights under the Act, is, for the purposes of section 10 of the Act, deemed a dispute.
- If the preceding actions fail, the third option is to make an application to the Court for damages arising from a breach of section 11(8) of the Act. Under this section, a building owner has a statutory obligation to make good any damage caused as a result of exercising rights under section 2 of the Act.
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.