February 1st, 2011
One case which goes into specific detail about an invalid Party Wall Notice is Hobbs, Hart & Co. v Grover [1899] 1CH 11.
In this case the works were subject to a Party Structure Notice and specifically included the demolition of a party wall and the rebuilding of this wall for use in the new works. G did not specify which works were proposed and merely quoted vague and ambiguous sections of the appropriate Act.
The court took the view that a Party Wall Notice must be “clear and intelligible” to the person upon whom it is being served so that a counternotice could be served if any modification of the works to suit the needs of the adjoining owner could be served. This Party Wall Notice failed to state which specific works were required and was deemed to be invalid by the court. G was required to serve a new Party Wall Notice before works could start, stating which specific works were being undertaken.
Often, when people are undertaking a “loft conversion” they may well simply state in their Party Structure Notice that they intend to construct – a loft conversion. There is no section within the Party Wall etc. Act 1996 (“the Party Wall Act”) which places an obligation to serve a Party Wall Notice purely for undertaking a “loft conversion”. Works which are related to a loft conversion however often do require a Party Wall Notice to be served at least 2 months before starting any works. Such loft conversion related works include (but are not restricted to):
- The cutting into the party wall for pockets for steel beams
- Weatherproofing the join between the new work and the existing by cutting a lead flashing into the existing party wall
- Raising a party structure, such as a party parapet wall or party chimney stack
- Removing a chimney breast and/or chimney stack from the party wall
- Demolishing a party wall or party structure and rebuilding it for use in the new structure
Simply stating that the proposed works are a “loft conversion” in isolation is insufficient to validly serve a Party Structure Notice under section 3 of the Party Wall Act. A reasonable detail of the works including the sections of the Party Wall Act which are relevant are almost always required, especially with Party Structure Notices, to avoid the ratio in Hobbs, Hart & Co. v Grover being applied to invalidate any such Party Wall Notice.
Tags: Court Cases, Dispute, Party Wall Act, Party Wall Award, Party Wall Notice, Party Wall Surveyors
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February 1st, 2011
Anyone reading through the Party Wall Law archives on this blog might well ask why so many cases predate 1997 given that the Party Wall etc. Act 1996 (“the Party Wall Act”) was brought into force in July 1997.
I would be sympathetic to the casual reader who took this prima facie view, as some Party Wall Surveyors (who should know better) would agree! I have occasionally worked with Party Wall Surveyors who have questioned my reference to certain cases when reinforcing a point I was making, simply because the case I was referring to came decades before the Party Wall Act was enacted.
The reason that these cases and decisions are entirely relevant is relatively straight forward: the Party Wall Act is simply the latest piece of legislation in a series of Acts of parliament which dealt with Party Wall Awards, Party Wall Notices and the practice of Party Wall Surveying. Indeed, much of the current Party Wall Act has roots in earlier statute, with revisions based on experience, the need for additions, closing loopholes and the decisions made in key cases to make it relevant for those doing work in the 21st century.
It is worth noting that three clauses in the Magna Carta (enacted in 1215) are still in legal use in England and Wales today. It is therefore ludicrous to state, in my opinion, that a legal principal or ratio is irrelevant simply because it is old! A great many well reasoned and carefully considered legal arguments have been made generations ago which are still regularly referred to today.
Tags: Party Wall Act, Party Wall Award, Party Wall Notice, Party Wall Surveyors, Party Wall Surveys
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February 1st, 2011
Security for expenses – section 12(1) of the Party Wall etc. Act 1996
The wording within the Party Wall etc. Act 1996 (the Party Wall Act) is very specific and can be very confusing. Section 7(2) of the Party Wall Act mentions:
‘…any work executed in pursuance on this Act.’
Works “pursuant to” the Party Wall Act are works that place an obligation on the Building Owner to serve notice but do not necessarily always give the Building Owner any additional right that they did not already possess. For example, If A were to dig 500mm from the boundary between them and B but were within three meters and going deeper than B’s foundations they would need to serve a notice under section 6(5) of the Party Wall Act. The right to dig a hole on ones own land is not a right given by the Party Wall Act as the right already exists. Proposing such works merely places an obligation to serve a notice on affected parties.
Later in the Party Wall Act at section 12(1) it mentions:
‘…the rights conferred by this Act…’
This is very different as it deals with rights that are not automatically possessed by the Building Owner but are obtained under the Party Wall Act. This often relates to specific works affecting Adjoining Owners such as underpinning of neighbouring foundations or building astride the boundary. When the Building Owner is undertaking works that are “conferred by” the Party Wall Act the Adjoining Owner affected can request “Security for Expenses” pursuant to section 12(1) of the Party Wall Act.
If Security for Expenses is granted the Building Owner is required to place a sum of money, which can be determined by both parties’ Party Wall Surveyors, into an escrow account. This money is for the Adjoining Owner to use if they need to secure their property in any such situation that the Building Owner is suddenly unable to finish the work resulting in the Adjoining Owner’s property being left in an unsafe or precarious state.
We are currently acting as Party Wall Surveyor for an Adjoining Owner in London where this situation has arisen and the Building Owner has had to place a sum of money into an escrow account. Once the work has been satisfactorily completed and signed off by the Party Wall Surveyors the money can then be released from the escrow account back to the Building Owner. If the Adjoining Owner needs access to any of the funds in escrow during the works the monies can only usually be released on the signature of the appointed surveyors or an award made by the third surveyor. The surveyors will need to determine whether or not the request is valid.
Tags: Party Wall Act, Party Wall Notice, Party Wall Surveyors
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November 4th, 2010
A member of the public contacted the myself at the office recently querying some damage that had been caused to his property as a result of works next door. The gentleman stated that the neighbour who was carrying out works under the Party Wall Act. The works were an extension to his property which involved a large skip being delivered to his driveway. During delivery the skip hit the gentleman’s wall and caused damage. Vincent-Brown & Associates had prepared and served them with a party wall award before the works started.
I informed one of our party wall surveyors and requested that he visit the site and note exactly what damage had been caused and who is responsible. Once the party wall surveyor had visited the site he wrote to the Building Owner requesting that the damage be put right pursuant to the party wall award previously made.
The Building Owner responded to the letter by saying that it was not his responsibility as he had not personally caused the damage and furthermore the damage was not caused directly by any excavations. However, the party wall surveyor confirmed that as the skip was at the property due to works pursuant to the Party Wall Act (excavating foundations for his extension) the damage to the wall was caused by works “in pursuance of the Party Wall Act” (section 7(2) of the Party Wall Act) it is the Building Owner’s responsibility to put it right in accordance with the party wall award.
Tags: Dispute, Party Wall Act, Party Wall Award, Party Wall Surveyors
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October 19th, 2010
This is an intriguing question and one that does come up from time to time.
Often, as a party wall surveyor, I am informed that the people next door are undertaking the work that is noisy, that there is dust and debris arriving in their garden and they are generally not happy by being disturbed by the works. In these circumstances I normally calmly explain to the neighbour that it is an unfortunate inevitability that living next to building works will cause some disruption to normal day-to-day life. It is the role of the party wall surveyor to set limits on unnecessary disturbance but we are unable to reasonably restrict normal and necessary inconveniences.
The case which is most relevant to this point is Andreae v Selfridge and Co. Ltd [1938] Ch 1 which is interesting in itself as the details of the case were not related to the Party Wall Act, but can be cited when defending a formal complaint of disturbance from neighbouring building work.
In this case A owned a hotel adjacent to S, who was undertaking extensive building work. A then sued S for nuisance claiming that she had lost significant custom due to noise and dust disturbance from the building works. The Court of Appeal considered that there is always going to be a certain level of disturbance when one party is undertaking construction works next to another.
The rule here is that provided that the works are not abnormally or unusually messy, and that all reasonable measures have been taken to ensure that protections are put in place to prevent dust and debris entering the neighbouring land, and that the works are carried out during reasonable hours, the neighbour must simply put up with the disturbance for the duration of the works. This is summed up per Sir Wilfred Green MR who oversaw this case: “I am unable to take the view that any of these operations was of such an abnormal character as to justify treating the disturbance [...] as constituting a nuisance.”.
As party wall surveyors we would usually seek to place certain restrictions on the permitted hours of work to ensure (in a party wall award) that minimal disturbance is caused to neighbours or their occupiers and place obligations on the party undertaking the building work such as installing protection and sheeting to minimise the amount of dust and debris entering neighbouring lands. Provided all of these are followed there can be a defence by applying the rule in Andreae v Selfridge and Co. Ltd. [1938].
However if a claim is made for uncessary disturbance the defendant must be able to show that they excercised proper skill and care in considering the level of disturbance per Sir Wilfred Green MR: “Their duty is to take proper precautions, and to see that the nuisance is reduced to a minimum.”
Tags: Court Cases, Dispute, Party Wall Award, Party Wall Surveyors
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October 1st, 2010
One of the common areas which party wall surveyors disagree on is when the works must have commenced by following a dispute under the Party Wall etc. Act 1996 (“the Party Wall Act“). Some party wall surveyors believe that the works must commence within 12 months of the date of the party wall notice, whilst others believe that the works must start within 12 months of the party wall award being served.
The key case on this particular point of law is Leadbetter v Marlybone Corporation [1905] 1KB 661 (Court of Appeal).
The defendant in this case served a party wall notice on the plaintiff under the London Building Act 1894 (from which the Party Wall Act partly derives). Party wall surveyors were appointed and made an award which was served on the parties AFTER the prescribed notice period allowed in the 1894 Act. The plaintiffs claimed that the defendant could not start the works on this basis and would need to serve a new notice.
The Court of Appeal held that the notice period was intended to apply in cases where the notice was consented to. If an award is made by party wall surveyors the works could commence in the time period specified in the award (usually 12 months) and not the notice.
There are practical reasons for this:
1) If the party wall surveyors take a long time preparing the party wall award this would be unfair as the building owner would not be left with much time to instruct builders and start the works.
2) When a party wall notice is consented to the building owner and adjoining owner rely on the party wall notice that has been served. If the party wall notice is dissented from the building owner and adjoining owner no longer rely on the party wall notice but the party wall award which is prepared by party wall surveyors.
Tags: Court Cases, Dispute, Party Wall Act, Party Wall Award, Party Wall Notice, Party Wall Surveyors
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September 23rd, 2010
In the week proceeding the 6th September 2010 I received a phone call from a member of the public who was in the process of purchasing a property in South West London.
She informed me that the current owners of the property had served party wall notices on the adjoining neighbours under the provisions of the Party Wall etc Act (‘the Party Wall Act’) in relation to a proposed extension and loft conversion. One of the adjoining neighbours had consent to the party wall notices and had no objections to the current owners of the property undertaking any building works. However, the adjoining neighbour at the other side had dissented from the party wall notice and indicated that they would like to have a party wall surveyor appointed to act for them and produce a party wall award.
The future owner of the property asked whether it is her responsibility to arrange for surveyors to be appointed and for a party wall award to be produced as she would be the one ultimately undertaking the building works once she had purchased the property. I informed the future owner that notices can only be served by the registered owner of the property (or an agent authorised to act on their behalf) and therefore once she owned the property she would be required to serve new party wall notices and follow the correct party wall procedure prior to commencing the building works.
If she decided not to serve new party wall notices once she was the registered owner of the property, any works that she may undertake that fall under the Party Wall Act would be contrary to the Act. As a result, she may experience difficulties when she comes to sell the property in the future, she may not have all the legal documentation required by the solicitor dealing with the sale which could cause significant delays and issues.
Tags: Party Wall Act, Party Wall Notice, Party Wall Surveyors, Party Wall Surveys
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September 14th, 2010
This is an interesting question which has been tested in court in the case of Onigbanjo v Pearson [2008] BLR 507 in the City of London Court.
In this case, a party wall notice was served on Pearson which was consented to. This meant that the works that Onigbanjo wanted to undertake could proceed without a party wall award first being drawn up by party wall surveyors. During the works Pearson’s property suffered from damage which gave rise to a ‘dispute’ under the Party Wall etc. Act 1996 (“Party Wall Act“). Pearson appointed a surveyor and then requested that Onigbanjo did likewise (as is required by section 10 of the Party Wall Act). Onigbanjo’s position was that Pearson could not change its mind once it had consented and ignored the notice to appoint a surveyor. Eventually a party wall surveyor was appointed for Onigbanjo pursuant to section 10(4) (b) of the Party Wall Act and made an award (which included the surveyor’s fees).
Onigbanjo did not accept responsibility for the surveyor’s fee nor the obligations placed on it under the party wall award. The court held that the party wall surveyors did have sufficient authority to make an award and to charge fees even though the notice was originally consented to.
This is seen as one of a few landmark cases in the application of the Party Wall Act.
Tags: Consent, Court Cases, Dispute, Party Wall Act, Party Wall Award, Party Wall Notice, Party Wall Surveyors
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