During lockdown home improvements and property building works increased, and most people are now living with the benefit of those improvements. However, for some such property owners they have realised either after commencing or completing the works that they did not comply with all the necessary legal requirements, which is where legal difficulties often arise.
What is the Party Wall Act (PWA 1996)?
The PWA 1996 provides a framework to enable neighbours in England and Wales who share a boundary to carry out building works in relation to party walls, boundary walls and excavation near neighbouring buildings. It was introduced because building works to party walls can cause damage to an adjoining owner’s buildings and interrupt their enjoyment of their use of their property.
A common misconception is that compliance with the PWA 1996 is not required because the works have the benefit of planning permission or confirmation of compliance with Building Control Regulations. Where works fall within the remit of the PWA it is important to comply with the Act despite having planning permission of Building Control approval.
The process under the PWA 1996
A building owner proposing to start works covered by the Act must, therefore, give adjoining owners likely to be affected by the works notice of their intentions in the way set down in the Act. The type of notice given differs depending on the work being carried out. Adjoining owners can agree or disagree with the proposed works. Where consent to the works is not given, each owner may appoint a Party Wall Surveyor to agree how the works will be executed and agree associated costs. This agreement will be set out in a Party Wall Award.
An adjoining owner cannot stop a building owner from exercising rights given to it under the Act, but may be able to influence how and at what times the work is done.
Building Owners eager to commence building works, however, are often frustrated by the further costs and time that will be spent complying with the PWA 1996.
So, what are the potential issues if a Building Owner does not comply?
Whilst there is no fixed penalty for failing to serve a notice, an Adjoining Owner would have various legal actions that they may be able to commence against a building owner if they failed to comply with the PWA 1996 e.g. a claim for private nuisance, trespass or an injunction.
Injunctions
Injunctions can be granted swiftly and stop the works immediately, until the Party Wall etc. Act process is followed (appointment of surveyors etc.). Ignoring an injunction could be a criminal offence.
The Building Owner may be held liable for the costs of obtaining the injunction (solicitor & court fees), as they should have served notice and adhered to The Act from the outset.
A Building Owner may also be ordered to remove what has now been built.
Damage to neighbour’s property
In some cases, an injunction is not appropriate. For example, where the building owner’s works have already reached completion. In that situation, the adjoining owner may seek compensation on the basis of the building owner’s failure to serve a notice. If a neighbour claims that they have suffered damage due to a Building Owners works they will provide evidence of this damage in its current state. Without a Schedule of Condition (usually party of a Party Wall Award) to compare conditions before and after it will be difficult (if not impossible) to identify what damage has been caused by the works.
As there has been a breach of statutory duty the claim by the Adjoining Owners will usually be assumed by the Court to be correct unless it can be proved otherwise.
Avoiding legal action
In circumstances when a Building Owner realises they have commenced or finished building works within the scope of the PWA 1996 but have not complied with the Act, it is recommended that specialist advice from a Party Wall surveyor and / or a specialise solicitor is sought.
In practice, a failure to serve notice on an adjoining owner may simply be an oversight on the building owner’s part, most suitably dealt with by the adjoining owner asking the building owner to stop work and to pursue the correct procedures. Whilst Party Wall Award cannot be entered into retrospectively, it is possible to agree with the neighbour to use the same procedure as to the Party Wall Act albeit the Party Wall Act does not apply in circumstances where the works have already been carried out. The first job that the surveyor will do is to review the works already carried out. The cost of the surveyor is usually paid for by the Building Owner. A surveyor would then be instructed to put something in writing to confirm that there is nothing in the works that have been carried out that compromise the neighbour’s property, or to set out what remedial works are required to deal with any problems that have been identified. The building owner would then hopefully agree to carry out those remedial works.
Works beyond the scope of the Award
If a Building Owner does comply with the Act but the building works go beyond the scope of the party wall award and causes loss or damage to the Adjoining Owner, either, the building owner may be sued for damages in trespass or nuisance (as above).
Appeal
If the Award itself goes beyond the scope of the Party Wall Act, an Adjoining Owner can appeal the Award but must do so within 10 days of it being served with the final Award.
For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.