This blog is not an authoritative interpretation of the law; it is intended as a general guide.
In this blog Icon Surveyors will be considering one of the provisions within the Act that a building owner or an adjoining owner commonly ignores and what rights that injured party has under the Act.
Building Owner Failing to Serve a Party Wall Notice
The Act provides that any proposed works that may interfere with an adjoining owners land can only be carried out under the proviso that the adjoining party gives their consent. Consent must be obtained through the service a Party Wall Notice. There are four types of Party Wall Notice, each dependant on the type of works a building owner intends to carry out.
Any building owner, who fails to fulfil their statutory obligation to serve an adjoining owner with a statutory notice of intent to carry out any proposed works, is in breach of that duty. There are limited actions an adjoining owner can take when faced with a building owner who carries out work without first giving notice.
Unfortunately, an adjoining owner that is put into this position is not able to enforce any of their rights under the Act. This is because, without service of a Party Wall Notice, the Act has not been invoked. However, there are other legal remedies available to an adjoining owner in the form of injunctive relief from a Court. There are two common grounds upon which an application to the Court may be made by an adjoining owner. The first is the building owner’s breach of statutory duty and the second is damage and/or injury caused to the adjoining owner by a building owner carrying out works believed to be in breach of their statutory duty. A Court may make an order for the building owner to serve a Party Wall Notice, in which case the Court will order the building owner to stop the works until such time as consent in accordance with the Act has been effected. The Court may also award damages to the adjoining owner and a costs Order against the building owner. For this reason, Icon Surveyor’s would always recommend that a building owner proposing to carry out any works that may be considered as works that are within the provisions of the Act, to serve a valid Party Wall Notice on all and/or any adjoining owner(s).
Adjoining Owner Ignoring a Valid Party Wall Notice
If, on the other hand, a building owner has served a valid notice on all and or any adjoining owner(s) in accordance with the Act, and all and/or any of those adjoining owners choose to ignore such notice, a remediable breach under the provisions of the Act will have occurred.
The Act provides that an adjoining owner has 14 days in which to respond to a Party Wall Notice. Any failure to respond is, under the provisions of the Act, deemed as an automatic disagreement between the parties. In that situation, a surveyor must be appointed to impartially remedy the party’s differences. This can be done by either party appointing their own surveyor, or both parties may agree to appoint a joint surveyor.
A surveyor has the discretion to award costs for their services to either and/or both parties. However, unless an adjoining owner has acted in an unreasonable manner or is deemed to have caused unnecessary costs and/or delays, it is usually a building owner who is liable for such costs.
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.
