Party Wall etc. Act 1996 – Service after work has commenced can prove to be futile!
Unless there is damage caused to or on an Adjoining Owners land, when works are nearing completion, there is little benefit in appointing and paying for surveyors and issuing party wall notification at this point. This is because the works 'have already taken place', (or mostly), so the remaining provisions that can be included in a Party Wall Award, at this late stage, will be extremely limited.
The requirements of the Party Wall etc. Act 1996 often come as a surprise for those who propose to undertake works to domestic buildings as well as those who propose works to commercial buildings in England and Wales. Given that the provisions of the Party Wall Act have now been in existence for the best part of 18 years it is equally surprising that there still seems to be a general lack of awareness of the requirements of the Act. The amount of Building Owners (a term used under the Act to describe the party who is undertaking the work), who choose to ignore the Act, whether through ignorance (which is no defence in law!) or a genuine desire to cut corners to save on time and expense, never ceases to amaze me. If the main purpose of the Act is to prevent and resolve disputes it seems a contradiction in terms that many of my appointments under the Party Wall etc. Act, were usually made when a dispute had already occurred! (at this stage the dispute was a dispute in general terms and not a Party Wall dispute).
For the purposes of this article I will refer to the domestic client, someone who in most cases (but not all), will have very little construction knowledge and will rely on others to point them in the right direction. For many in this situation the first port of call may be to contact a Contractor to come a long to give them some initial advice as well as an indication of likely costs, a ball park figure if you like. I can remember a number of situations where I had been appointed by a Building Owner as Party Wall Surveyor after works had commenced, where for whatever reason they had been made aware that they should have notified their Adjoining Owners (a term used under the Act to describe the party who is affected the work), but had not been advised of this by their Contractor.
The impact of the dealing with the Party Wall Act retrospectively (after work has already commenced) can vary for the Building Owner depending on whether any damage has occurred on the Adjoining Owners land (which is one of the main reasons that brings the Party Wall Act to the attention of the Building Owner), and how advanced the works are. In the first case of damage occurring before party wall notification has been served, an Adjoining Owner will need to rely on common law rights and may seek an injunction in the County Courts to have the works stopped. The Adjoining Owner will not be able to rely on the provisions of the Party Wall Act at this point because the Act has not been initiated, which only happens when notification is served.
In the situation where works are well advanced and sometimes nearing completion, it is worth thinking about the benefits of issuing party wall notification as well as the production of a Party Wall Award (sets out the terms and conditions for the proposed works, including costs/fees). One of the key reasons for the introduction of the Party Wall Act was to enable Building Owners to undertake work and give Adjoining Owners confidence that the works would be carried out in an appropriate manner and any damages caused on the Adjoining Owners land, in respect of the notifiable work would be rectified. Unless there is damage caused on an Adjoining Owners land, when works are nearing completion, there is little benefit in appointing and paying for surveyors and issuing party wall notification at this point. This is because the works 'have already taken place', (or mostly), so the remaining provisions that can be included in a Party Wall Award, at this late stage, will be extremely limited. An Adjoining Owner should not be given the impression that they can solely use the provisions of the Act as a way of disrupting the Building Owner and making them incur excessive expense (the Act also provides for the Building Owner to meet the reasonable fees of an Adjoining Owners Surveyor, if appointed), unless of course damage has occurred as a result of any works that may be notifiable.
If it is realised that a Building Owner has failed to serve Party Wall notification and works have been completed and an Adjoining Owner is not satisfied with the standard or quality of the works then they can scrutinise Building Regulations and Planning Permission requirements (if applicable) to confirm that these have been complied with and also consider areas of common law such as negligence, nuisance and trespass etc, if they have suffered damage or disruption. I have previously been approached by a number of people in this very situation where they have been told to insist that their neighbour issues Party Wall notification, after work had already commenced. For the reasons explained above, this is a pointless exercise and very poor advice. Once works are complete an Adjoining Owner should seek a common law remedy if they feel they have a justified grievance with their neighbour. They cannot rely on the provisions of an Act that has not been initiated in the first place!
It is worth noting that for the purposes of this article I have used the terms Building Owner and Adjoining Owner throughout. Whereas these roles only exist once the Party Wall Act is initiated through the service of notices, these terms have been used to explain the relationship between those who may have work undertaken and those who may be affected by these works.
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