Before undertaking works which are covered by the Party Wall etc. Act you are required to serve notice on the Adjoining Owners of neighbouring properties, likely to be affected. See our previous blog here…….. It is advisable to engage a Party Wall consultant to serve the notices on your behalf to ensure the process is followed correctly.
If the Adjoining Owners don’t consent to the works, each owner will appoint a Party Wall Surveyor to agree how the works will be executed and agree associated costs. The Building Owner undertaking the works will normally pay the fees of both surveyors, and any other costs, including compensation for any damage caused to the neighbour’s property.
When The Act is followed the surveyors will prepare a Schedule of Condition before the works commence, which identifies defects already present and acts as a benchmark to allow before/after comparison, therefore identifying damage caused. The Building Owner will therefore only pay for damage actually caused.
– So if this is going to increase the cost of the project why bother, what’s the worst that can happen?
Penalty for lack of notice
There is no penalty/fine for not serving a notice. However, this could potentially result in significant costs.
Where you start works without notice, or the notice is invalid due to incorrect/insufficient information the Adjoining Owner can apply to the court for an Injunction. 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.
You may be held liable for the costs of obtaining the injunction (solicitor & court fees), as you should have served notice and adhered to The Act from the outset. You could also be ordered to remove what has now been built.
The neighbours might not be aware of the ability to obtain an injunction, or could decide not to pursue this route to later enable court action for “damage”.
Damage to neighbour’s property
By failing to serve a notice you will be breaching a ‘Statutory Duty’. When a neighbour claims that they have suffered damage due to your works they will provide evidence of this damage in its current state. Without a Schedule of Condition to compare conditions before and after it will be difficult (if not impossible) to identify what damage has been caused by the works. Your neighbour may therefore decide to make spurious claims for pre-existing defects.
As there has been a breach of statutory duty the court is likely to ‘Reverse Burdon of proof’. In practice this means that the neighbour claim is assumed to be correct unless you can prove otherwise. You may therefore be ordered to pay for any number of repairs, which in reality are not your responsibility (plus solicitor’s and court costs).
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