Insights

A Prop in Time…


04/07/2011

There is a new activity to be added to the list of potentially irritating things property owners can do to upset their neighbours and that is to excavate a basement (or two). This article explores in general terms one of the key issues that arises when such works are planned, namely, the application of the Party Wall etc Act 1996 (the Act) and the rights and obligations of the person carrying out the works (the building owner) and their neighbours (the adjoining owner).

What work does the Act cover?

The Act was brought in to:

(a) regulate and facilitate building work comprising:

  • building or demolishing a party wall or structure (section 1)
  • carrying out repairs to party structures (section 3)
  • excavating a site within 6 metres of neighbouring buildings

(section 6)

and

(b) provide a mechanism for resolving disputes in connection with the carrying out of those works.

The Section 1 Notice governs works where the building owner intends to build a new wall or party fence wall (not a wooden fence) and must be given one month before the works commence. Service of a notice for this kind of work is mandatory, even if the adjoining owner consents to the proposed work.

The adjoining owner may:

(a) consent within 14 days or
(b) do nothing

In the event of (b) the building owner can only build on their own land.

The Section 3 Party Structure Notice governs works to an existing party wall or party fence wall and must be given to the relevant adjoining owner at least two months before works are due to start. It is possible to get the adjoining owner’s prior consent to the works.

The Section 6 Notice must be given in relation to any works that sink foundations or other structures within

(a) three metres of the adjoining owner’s building or
(b) six metres, if any part of the proposed structures (such as foundations) would be dissected by a line drawn downwards at a 45° angle from the nearest part of the adjoining owner’s foundations.

One month’s prior notice must be given to include detailed plans and sections of the proposed excavation and new structure. If the adjoining owner reasonably requires, the building owner is obliged to underpin or strengthen the foundations of the adjoining owner’s property.

Disputes and the Party Wall Award

A “dispute” under the Act arises or is deemed to arise if:

(a) there is a failure to respond to a section 3 or 6 notice;
(b) the adjoining owner does not consent to a section 3 notice within 14 days;
(c) the adjoining owner serves a counter-notice under section 3; or
(d) the building owner fails to respond to a section 3 counter-notice within 14 days.

Once a dispute has arisen a party wall surveyor must be appointed to represent the adjoining owner’s interests, this may be the building owner’s party wall surveyor (who must act impartially) or an independent surveyor. The costs are to be met by the building owner.

The party wall surveyors prepare and agree a schedule of condition of the adjoining owner’s property, any appropriate timetable for carrying out the work, the payment of costs, the method for protecting the adjoining owner’s property and the terms of inspections, which is then formalised in a Party Wall Award. The schedule of condition is the evidence against which any claim for damages by the adjoining owner is assessed. Generally, the adjoining owner cannot claim compensation for any inconvenience or loss of enjoyment of their property whilst the work is carried out.

Security for expenses (Section 12)

Where extensive structural work is to be undertaken the adjoining owner will want the comfort of knowing that in the event the building owner runs into financial difficulty there is a sum of money set aside to ensure that both properties are reinstated and not left partially complete. The section 12 notice must be served before the building owner starts any work and the amount of the financial security agreed between them or, in the event of dispute, by the party wall surveyors.

Failure to serve notices

Whilst the Act does not contain any sanctions for failure to serve any relevant notice, that does not mean the adjoining owner is powerless as their rights are protected by the general law: breach of statutory duty, nuisance and trespass, which may entitle them to pursue a claim for damages or seek an injunction.

The moral of the story is:

For anyone contemplating carrying out major building works, there is a salutary lesson in the case of Jones v Ruth [2010] EWHC 1538 where a building owner undertook an extensive project to his property on a piecemeal basis over a period of four years, committed trespass and caused significant harassment and nuisance to the adjoining owner leading to an award of damages against him of £100,000. This is an extreme example of what happens when a building owner does not pay heed to statutory and common law obligations, but also a reminder to adjoining owners not to allow a situation to deteriorate to the point where significant distress is caused and costly litigation ensues.

Gordon Dadds