Consequences of not adhering to the Party Wall etc. Act 1996
If you are an owner of a property and you intend to carry out certain types of building works at that property, then there are a few things to think about before those works can commence. In addition to obtaining any necessary planning permission and ensuring compliance with building regulations, some work also requires you to adhere to the Party Wall etc Act 1996. These are:
• If you intend to build a free-standing wall or a wall attached to a building up to or astride the boundary of an adjacent property;
• You intend to complete work to an existing party wall/structure or build against the same; or
• You intend to excavate close to a neighbouring building.
But what if you don’t comply with the requirements of the Act? What then? Well, there are several potential consequences that you need to be aware of. Which consequences apply and to whom depends on whether you are the owner of the building where the works are being carried out or you’re the adjoining owner, as well as what part of the Act hasn’t been followed.
If the building owner allows work covered by the Act to start without providing due notice to all adjoining owners, then the adjoining owner can issue an application at court for an injunction. If granted, that injunction would mean that the building owner could not continue with the works until the injunction was no longer in force. Should the building owner disobey the injunction, this would be a contempt of court, a criminal offence for which he may be fined or even imprisoned.
The adjoining owner is also able to seek alternate forms of legal redress. As a minimum, this is likely to result in solicitor’s letters and at worst might include additional civil claims for damages for trespass and/or nuisance.
On top of that, the building owner may find that the court costs and legal fees of the adjoining owner(s) in issuing these court proceedings are also payable by him. That’s in addition to any of his legal fees in defending the claims.
Under the Act, it is a requirement that the building owner does not cause unnecessary inconvenience to the adjoining owner. They are also required to make good any damage caused as a result of the works or provide the adjoining owner with a payment in lieu.
If this part of the Act is breached, then it again remains available to the adjoining owner to seek legal redress in the civil courts for whichever of these remedies he seeks. Again, legal fees might be ordered against the building owner if the adjoining owner’s court application is successful.
Responding to notices
For an adjoining owner, consequences can arise for them if they fail to respond to the building owner’s notice within 14 days from the date it is deemed served. This is because their lack of response is considered to be confirmation that a dispute has arisen. Accordingly, the dispute resolution procedure is invoked, meaning at least one jointly instructed surveyor must be involved, or two if instructed separately, who will, of course, have fees that will need paying by the parties.
Likewise, for the building owner who receives a counter-notice from an adjoining owner relating to additional or modified work that they would like to be included as part of the proposed works; the building owner should respond to that notice within 14 days to avoid the deemed dispute rule applying and possible extra fees.
It should also be noted that once a surveyor is involved, their award is final unless, on appeal, it is rescinded or modified by a county court. Appeals will also incur further costs and, should the appellant be unsuccessful, they could also be ordered to pay the legal fees of the other party.
Uncooperative adjoining owners
If the dispute resolution procedure has been invoked but the adjoining owner refuses to cooperate and appoint a surveyor as required, then action can be taken by the building owner. The building owner can instruct a second surveyor to act on behalf of the adjoining owner and the procedure continues.
Should the adjoining owner fail to comply with the Act in allowing properly notified access when necessary to the building owner’s workmen/any surveyor, then this is a criminal offence. In consequence, the adjoining owner could be brought before the magistrates’ court to be prosecuted.
For adjoining properties that are closed, a further consequence includes that entry by the building owner’s workmen/any surveyor is permitted, including by breaking open a fence or a door, but only if a police officer accompanies them and the building owner has fully complied with all of the Act’s procedures.
Both owners must remember that they may be required to disclose to future potential buyers if there has been a notice/dispute relating to the Party Wall etc Act.
For the building owner, there may be other consequences to bear in mind arising out of party wall works. For instance, if there is fear by the adjoining owner(s) that works of a particularly complex or intrusive nature will not be completed, security might be needed as a type of insurance.
If there are concerns around the works making a building dangerous or unsafe then this might be raised with the building control department for the relevant local authority, whereas excessive noise complaints might be referred to environmental health. This might lead to further action against the building owner.
Overall then, the consequences of not adhering to the Party Wall etc Act leaves the person in breach at risk of possible enforcement action. Whilst the Act itself does not include any enforcement provisions (unless stated otherwise above), it remains open for any involved party to refer the matter to the civil courts for remedy, as is the case with most property law matters.
To ensure that you avoid all of these consequences, call experienced party wall surveyors London, AC Design Solutions, today!