A recent court decision has concluded that the Party Wall etc Act 1996 did not apply because a Notice under the Act was not served on a neighbour. So how can the Party Wall Act protect home owners when neighbours decide to perform work on their property? First let’s look at the case.
Raheel Shah’s neighbours, Soritis and Androulla Panyiotou, accused him of removing the chimney breast of his semi-detached Dagenham property in 2017. They claimed that the work had caused damage to their own property. Mr Shah had not served any notices to his neighbours under the Party Wall Act, and claimed that the work had been carried out previously.
His neighbour appointed Lee Kyson to provide advice in respect of the Party Wall Act. Mr Kyson concluded that the Act did apply in this instance, but this opinion was contested by Mr Shah’s planning consultant.
A second Party Wall surveyor, Ken Power, was then appointed to resolve the dispute after Mr Shah failed to jointly or separately appoint a surveyor.
Mr Shah refused to engage with Mr Power and, after inspecting the neighbours’ property under the dispute resolution mechanism provided by Section 10 of the Act, Mr Power issued an Award against Mr Shah on 3rd July 2018. He determined that:
- The work carried out should have been notified to his neighbour, under the Party Wall Act and that the work had damaged his neighbours’ property;
- Compensation should be paid by Mr Shah in the sum of £4,223.49;
- Surveyor’s fees should be paid by Mr Shah in the sum of £4,360.00.
Mr Shah failed to pay the sums awarded and proceedings against him in Sevenoaks Magistrates Court to recover the sums owed were stayed when Mr Shah commenced his own Central London County Court action, claiming that the declarations within the Party Wall Award were null and void and that, therefore, no professional fees were owed to either surveyor.
At appeal, the Court found in Mr Shah’s favour, concluding that the surveyor did not have jurisdiction to make an Award under Section 10 of the Party Wall Act, when Mr Shah had not served notices prior to the work being carried out.
An appeal was dismissed, with HHJ Eyre stating that the dispute between the neighbours did not arise under the Act, that the Act does not apply retrospectively and that the Award, therefore, did not apply.
“…the dispute resolution provisions in section 10 of the 1996 Act are circumscribed to deal with disputes arising out of works or intended works which are to be carried out under the 1996 Act and such works are works for which notice under the 1996 Act has been given. Once notice has been given than the nature and extent of the matters can be brought before the surveyors for dispute resolution pursuant to the 1996 Act is relatively wide but the notice provision is a necessary and essential in group gateway prior to the surveyors having the jurisdiction given to them by Parliament under the 1996 Act.”
So how can you protect your property when your neighbour doesn’t serve notice under the Party Wall Act?
The best course of action would have been to an application for an injunction for not serving notice, to prevent the work from starting until the Act was properly followed.
However, it may be possible to take legal action in the County Court to seek damages for the cost of rectifying the damage caused by the work.
If you suspect that work is likely to be carried out and that the Party Wall Act is not being followed, contact an indendent Chartered Surveyor urgently for advice and assistance.