Party Wall Legislation for Architects Party Wall etc Act 1996 – By Bernard Humphrey-Gaskin

Party Wall Legislation for Architects Party Wall etc Act 1996

By

Bernard Humphrey-Gaskin

18th September 2014

RIBA Croydon, Bromley & Sutton Branch

Crown & Pepper pub, 242 High Street, Croydon CR0 1NF

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

1

The architect’s role

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

2

- The Architect is the “agent” to the Client, (i.e: “the Building Owner”)

- The “Building Owner” is the owner of the land, the person or persons undertaking the works (exercising rights under the Act).

- “Adjoining Owner” is the legal owner or owners of the neighbouring land, buildings, rooms, storeys. (Leasehold would include anyone with a term greater than 1 year)

- “Surveyor” under the Act (S20), is any person not being party to the matter (appointed under S10).

- Although the party wall Act does not preclude it, the Owners really need to be careful if they decide to appoint their agents (whether architect or other) to perform the duties of PW surveyor.

- Although case law (Loost –v- Kremer (1997) has caused a lot of discussion within party wall community. A judge was acceptable to the idea that the architect dealing with works could deal with the party wall issues. However, the issue was on a matter of legal fact (i.e: the Act does not preclude it). The case dealt with more significant matters of the building works and awarded works (i.e: definition of party wall, validity of appointments, jurisdiction and other matters).

- The RIBA (party wall workbook by Nicol Stuart Morrow), suggests separate appointments are needed from the “agency” capacity.

The architect’s role

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

3

- The revised guidance booklets from the government suggestion is that the party wall surveyor as: ” …he person should not have already been engaged to supervise the building work…” Although, it would be correct to say that many architects do not supervise the works.

- The PW surveyor may need to demonstrate impartiality and in order to undertake his duties. i.e: It is difficult to be a servant to two masters. (the Act and the Client)

- There may be a time when the PW surveyor needs to act as an “agreed” surveyor anyway (S10.7 – ex parte)

- If after all that has been stated above, the architect still decides to help out the client by being a PW surveyor for the project he is working on, maybe because he feels it’s a small issue that needs to be dealt with under the Act (i.e: one beam inserted into the party wall), the architect is immediately adding additional costs to the project that his client will need to pay, because the adjoining owner would be forced to appoint his own independent PW surveyor without the possibility of having the savings of one PW surveyor in the form of the “agreed surveyor” i.e: Client forced to double up the costs .

- If the architect and/or designer still decides to help out his/her client by taking on the role of PW surveyor, be sure that PI insurance company is aware of this.

The architect’s role

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

4

- So, what should the Architect do?

1.Advise his / her client to serve Notices for the notifiable works

2.Help prepare (for a fee), the Notices, that need to be served by the Client.

3.Advise his / her client to appoint a PW surveyor. a. On larger and complicated projects, the surveyor could serve the Notices b. To resolve a dispute under S10, following the service of Notices

4.Help the PW surveyor, by providing drawings and details of the proposed works.

5.Help his / her client understand the conditions of an “Award” that determines the PW dispute and ensure that the client’s builder also understands the conditions and adheres to them.

6.As an architect, I find that for small jobs, with limited budgets it is important to advise the client to serve the notices once the costs of the building works have been agreed with the builder. Although this may delay the start of the works, it helps with the financial planning of the project, whilst including for the possibility of PW surveyors fees.

“notifiable” works S6 (1)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

5

- Section 6 (1) works – most common.

1.Excavations and/or structures (foundations), within 3m of adjoining buildings and/or structures (this could include planting trees or laying pipework), and at a depth lower than the adjoining buildings and/or structures.

2.3m distance is in any direction (see diagram).

3.Notices require drawings (plans and sections) attached to them, showing both depth and location of excavations and/or foundations.

4.State whether it is proposed to underpin the adjoining structures, or otherwise strengthen or safeguard them.

5.Notices must be served at least one month prior to the start of the works.

6.Notices must be in writing.

“notifiable” works S6(1)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

6

- Adjacent excavations and construction. 3m Notices

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S6 (2)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

7

- Section 6 (2) works – not common for domestic works.

1.Deep excavations and/or structures (foundations), within 6m of adjoining buildings and/or structures. Normally this would be piling works, or deep underground tunnelling or basement works.

2.6m distance is in any direction within the intersection of the new excavations or foundations taken from a notional plane projected at 45degree from the bottom of existing structures foundations inline with the external face of the building above. (see diagram).

3.Notices require drawings (plans and sections) attached to them, showing depth and location of excavations and/or foundations.

4.State whether it is proposed to underpin the adjoining structures, or otherwise strengthen or safeguard them.

5.Notices must be served at least one month prior to the start of the works.

6.Notices must be in writing

“notifiable” works S6(2)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

8

- Adjacent excavations and construction. 6m Notices

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

9

- Section 2 works – various types of works to the party wall or structure

1.There are two types of party walls a. One that stands on the land of different owners. i.e: walls for terraced buildings that have a boundary line somewhere in the middle (see diagram). b. One that stands on the land of one of the owners, but is shared by enclosure with the other owners building. (see diagram). 2. Party structures, are floors, partitions and other structures separating two owners. 3. The Notice does not require drawings, it only needs a written description of the works, related to the “notifiable” works. However, drawings would be helpful, as it aids in the development of the Award. 4. The type of works that require a Notice, basically include anything that is intended to be done to a party wall or structure from a construction point of view. To name but a few: removal of structure, insertion of structure, flashings, raising and removing party walls or structure, underpinning the party wall, and so on. 5. Notice is served using Section 3 of the Act, and must be served at least two months prior to the start of the works. 6. Notices must be in writing.

“notifiable” works S2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

10

- Party walls, type a

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

11

- Party walls, type b

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

12

- Party structures

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

13

- Party fence wall (walls only – not timber fences)

Diagrams reproduced from ODPM The Party Wall etc Act 1996 Explanatory Booklet, Crown copyright

“notifiable” works S1

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

14

- Section 1 works – building on or near line of junction (i.e: boundary line)

1.Principally, this means that the building owner wants to form a new party wall on foundations, the wall being one that stands on the land of the different owners. This requires written approval, by the adjoining owner.

2.If the adjoining owner does not permit it or does not respond to the notice within 14 days, then the building owner is not permitted to build the wall astride the boundary.

3.The building owner is however permitted under the Act to still place the foundations of the wall on the adjoining owners land, even if consent to build the wall astride the boundary is not given.

  1. Hence it is useful, to serve S1 Notices in order to place foundations on the adjoining owners land. S1(5), is useful for this, as it states the wall will not be built astride the boundary in the first place. 6. No drawings are required but the description of the wall is required. However, drawings are normally the best way to describe what is intended anyway. 7. Notice must be served at least one month prior to the start of the works. 8. Notices must be in writing.

The PW surveyors S10

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

15

- Section 10 – When do Party Wall surveyors get involved ?

1.PW surveyors are appointed to resolve disputes, for building work undertaken in pursuant of the Act (i.e: notifiable works). There are some surveyors around who actually abuse this point and generate a dispute over and above that which the works have created following the service of notice.

2.PW surveyors are meant to be impartial.

3.There are two scenarios for PW surveyor appointments. a. The “Agreed Surveyor”, where both the building owner and adjoining owner agree to use the same PW surveyor. b. “The three surveyors”, where each owner (building and adjoining) appoints their own surveyor. The two surveyors then concur on the selection (not appointment) of the “third surveyor.

4.The appointment of PW surveyor, is a personal appointment of a person, not a company.

5.The PW surveyor appointments cannot be rescinded by the appointing owners.

The PW surveyors S10

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

16

- Section 10 – Resolving disputes

1.If Notices for section 2 and section 6 works have not been formally agreed (in writing) within 14 days from date of service, then it is deemed a dispute under the Act which requires PW surveyors to be appointed.

2.The adjoining owner can formally dissent to the Notices. Then, it is a dispute that requires resolving by the appointed PW surveyors.

3.The adjoining owner can formally consent to the Notices. Then, there is no dispute to be resolved, and works can proceed within the year that the Notices were served. If, however, later on during or following the works there is claimed damage or some other matters under the Act that generates a dispute between the owners, then PW surveyors can still be appointed to resolve matters.

4.Even if a Notice has not been served, and a dispute arises, for works under the Act, this still can be resolved with the appointment of PW surveyors. I refer to section 7 (Rights of Compensation) of the Act, also Sections 11 (Expenses defrayed costs), 12 (Security for Expenses) & 13 (Account for carrying out works).

The PW surveyors S10

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

17

- Section 10 – What will the PW surveyors “normally” do.

1.The building owner’s PW surveyor would normally be in charge of the process.

2.If required, to serve Notices, the PW surveyor should check Land Registry for ownership details.

3.Prepare and serve the Notices.

4.Liaise with the adjoining owners PW surveyor, to undertake a Schedule of Condition (SOC) of the adjoining property. There is no requirement in the Act that makes it a statutory requirement to prepare a SOC. It is advisable to do a SOC in case there is a claim for damage and proof is required.

5.Liaise with the adjoining owner’s PW surveyor and other consultants (architect and engineer) to prepare the Award and serve the Award.

6.The adjoining owners PW surveyor would revisit the site following the completion of the works to check off the SOC and to see if there has been any damage and to sign off matters if there is no damage.

7.It is not the PW surveyors job to “police” the Award(s) that are produced.

8.It is the appointing owners responsibility to keep an eye on the Award conditions.

“Budgeting” for PW matters

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

18

- All building owners with works that come under the “Act”, should allow for costs for party wall negotiations within their budgets.

- PW surveyors normally charge on hourly rates:

1.The Building Owner’s PW Surveyor would have a contract. The PW Surveyor should have identified their approximate timing in handling matters, under normal circumstances.

2.The Adjoining Owner’s PW Surveyor fees (costs) are placed in the Award and the Act state that these should be reasonable (costs).

- PW surveyors fees currently range for London work from: £100 to £175 per hour + VAT.

- A rule of thumb would be to allow for PW surveying fees for a normal terraced domestic job within London from £600 to £1500 + VAT per PW surveyor.

- A typical terraced property in London, could attract PW surveying fees from three surveyors (two adjoining owners one each side appointing their own surveyors plus the Building owner’s surveyor) in the region of: £ 1800 to £ 4500 + VAT.

Allow for “damage”

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

19

- All building works that come under the “Act” should allow for the possibility of “damage”.

- It is not possible to assess costs of “damage” prior to it occuring.

- It is down to the building owner to either pay for the damage or get the damage put right. The building owner cannot claim that they are awaiting costs or insurance pay out from the contractor prior to putting the damage right.

- Under the Act, S11(8), the adjoining owner is within their rights to ask for money in lieu. It is becoming more frequent that money in lieu is asked for, instead of having the contractor who undertook the works to make the repairs.

- Normally a schedule of damage and making good is undertaken, by the PW surveyors at additional costs (fees)

- Normally the adjoining owners get their own prices in for the PW surveyors to agree. At least three quotes should be given. The building owner should arrange for another independent price. The prices have to be reasonable and I generally recommend that the contractor who caused the damage does not provide this.

- Normally, it is better for the owners to agree amicably the payment in lieu, otherwise another Award will be written to determine the amounts, which can be upheld in the courts if necessary and thereby causing additional costs.

Define the “works”

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

20

- It is advisable that “works” to be undertaken under the “Act” are clearly defined on the drawings.

- Confusing drawings, with discrepancies or poorly coordinated drawings will cause a “lack of confidence” in the “works” to be undertaken. This will cause additional time by the PW surveyors and this will be reflected in the fees (costs).

- Certain types of structural work (i.e: underpinning, piling, major structural alterations, etc) could result in additional costs (fees) from the adjoining owner’s PW surveyor employing an independent structural engineer to check the proposals

- Awards need to reflect the “notifiable” works to be undertaken. Any changes in the proposed works may require new or additional “Notices”, and/or agreements and/or Awards. This will cause additional time by the PW surveyors (costs).

- It is not the job of the PW surveyors to undertake the design work. They are there to resolve the “dispute” or deemed “dispute”.

Surrounding “owners”

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

21

- In order to help reduce the time (costs) of the PW surveyors, it would be useful if all designers could provide “to scale” drawings indicating: all site boundaries, boundary walls, party walls, party fence walls (garden walls) and nearby (adjoining) buildings including those to the rear and sides. Also include the exact location of the proposed works related to these other structures and buildings.

- Also it would help, in reducing PW surveyor costs, if the design team discover as much out as possible as regards the adjoining properties and owners.

- Competent PW surveyors would still need to check ownership details against the Land Registry information.

- Where no information on ownerships can be found, the PW surveyor would need to affix Notices to the adjoining property concerned.

“Special foundations” S7(4)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

22

- “Special foundations”, are basically reinforced foundations.

- It appears to be common practice in basement works, that the structural engineer will propose “special foundations”. They may be called basement retaining walls, but they are “modified foundations” providing support to the above structures, whilst allowing for lateral restraint.

- The building owner has no right to place “special foundations” on the adjoining owners land without written consent to do so by the adjoining owner.

- If consent is not given then the foundation works need to be undertaken using wider mass filled foundations without reinforcements.

- If “special foundations” are allowed and then in the future the adjoining owner decides to undertake their own works to which the special foundations cause additional costs, then the adjoining owner can claim for these costs against the building owner ( S11(10)). Therefore, it is important to get the details correct for the “special foundations” in order to avoid excessive costs later. (i.e: no reinforcements in the heal of the foundations)

“Enclosure payments” S11(11)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

23

- If an adjoining owner had previously undertaken works solely at his own expense and the building owner decides to make use of these works, then the building owner shall pay the adjoining owner a due proportion for the cost of the works at “current prices”.

- The common usage terms are “defrayed costs” or “enclosure payments”. They often occur for existing raised party walls (loft rooms) or basement retaining walls.

- “Enclosure payments” are based on half the current price to undertake a similar construction plus professional fees, overheads and profit (OHP), and VAT (current rate).

- Building owners should view these “enclosure payments” as a positive benefit, as they avoid in having to build the works (walls etc) themselves and are only paying for half the costs in enclosing upon the walls.

- Typical London current prices for enclosure payments for raised domestic loft room party walls are approx. £225 to £250 per sqm + VAT (inc. OHP and fees). This already allows for half the value of the full costs of building the wall.

- Typical London current prices for enclosing payments for domestic basement walls (appx 2.5m deep) are approx. £975 to £1300 per linear m + VAT (inc. OHP and fees). This already allows for half the value of the full costs of building the wall.

The “third” Surveyor S10

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

24

- The “third” surveyor (“TS”) is a person that the building owner’s and adjoining owner’s surveyors nominate (select), in case they or the owners cannot agree on a matter or matters in dispute. The selection of the “TS” must be the first action to be agreed between the two appointed surveyors before anything else is done.

- There is no need to select a “TS” where the owners have agreed and appointed an “agreed” surveyor.

- The “TS” does not need to know that he/she has been selected.

- The “TS” is normally a well known experienced PW surveyor.

- Either party (the owners) or the PW surveyors can call upon the “TS” to resolve matters that cannot be agreed between the two surveyors or parties.

- The PW surveyors must get approval from their appointing owners prior to calling on the “TS” to resolve the dispute, since approaching the “TS” is likely to incur high fees in resolving the matter. London based “TS” fees range from £250 to £370 per hour + VAT. The “TS” gets his fees paid prior to publishing the determination.

- It should be noted that if one of the parties does not want to have a “TS” determination, then the other party wins the disputed matter in their favour. Quite often this is about the adjoining owner’s surveyors fees, but other matters can be decided also, such as “enclosure payments.”, etc.

The “Award” S10(10)

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

25

- The “Award” is a the written document that determines the “dispute”.

- The appointed surveyor(s) prepare and serve the “Award”

- The appointing parties (building or adjoining owners) can appeal any “Award” made by the surveyor(s) in a county court, within 14 days following its publication. It is therefore important that the owners understand the “Award” and its conditions.

- The “Award” would not allow for any deviations from the “notifiable” works shown on the drawings attached to the “Award” without prior approval.

- After the 14 day period from service of the “Award”, it becomes a legally binding document and it can be taken to court to impose the conditions, if necessary.

“Security” for expenses S12

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

26

- “Security” for expenses is becoming a common request.

- Normally “security” would be asked if the risk of damage is high or likely. Eg: basement excavations.

- “Security” is a financial burden placed on the building owner, upon service of a notice by the adjoining owner.

- If the amount of security cannot be agreed then this is a “dispute” that can be determined by the PW surveyors. Of course this would mean additional costs (fees).

- With the current economic climate, I imagine “security” will start to be almost common place. Adjoining owners do not want to have the problem of the party wall being exposed, and left open as the contractor or even building owner goes bust, without some financial recourse in order to remedy the problem.

Practical issues and

Example Documents

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

27

- I have attached over the next few slides some example documents that I have used on some recent party wall works. One must remember that each situation is different.

- A few difficulties arise out of the human relationships that are in place to start with. i.e: existing neighbourly disputes unrelated to the Act.

- Also each PW surveyor has his/her own particular way of doing things and this can also cause issues.

- The Act has a lot of case law and interpretations which give rise to plenty of discussions on party wall forums and at lunch meetings of the “Pyramus & Thisbe Club”. PW surveyors don’t necessarily agree with each other and this also where problems can arise.

- Most importantly the actual Act must be referred to in all circumstances when considering what sections apply. By all means look at the guidance notes and books, but the Act is the law.

28

The PW appointment

 – Appointments are in writing.

 – The appointing owners must sign this for their respective surveyor.

 – The owners should ensure that they give the PW surveyors the right to receive and issue further Notices. The standard acknowledgement form does not cover this.

 – The owners should ensure that they give the PW surveyors the right to appoint others. Eg: independent structural engineers, other surveyors when notices are not being responded to.

29

The letter with Notices

 – Standard letter to adjoining owners with Notices attached.

 – Inform the adjoining owner of their rights under the Act.

 – Give them an opportunity to discuss matters with you.

30

Section 6

Notices

 – Identify the owners, the address & the section of Act the notice refers to.

 – Refer to drawings, showing location and depths.

 – Inform adjoining owners if measures to safeguard their property are going to be in place. i.e: underpinning etc.

 – Inform date of start of notifiable works one month from service, unless agreed in writing to be earlier.

31

Section 6 Notices – plans

32

Section 6 Notices

– sections

33

Section 3 Notice

for S2 Works

 – Identify the owners & addresses

 – Read section 2 of the Act, to ensure the relevant clauses are referred to on the Notice

 – Indicate intended start date, at least 2 months from date of service of Notice. Unless agreed in writing to be earlier.

34

Acknowledgement

of Notices

35

10 Day request

S10 (4)

 – Once the 14 day period to respond to the Notices has lapsed, the matters are in dispute.

 – Sometimes it is necessary to push the adjoining owners to appoint a surveyor. A request can be send under section 10.

36

Appointment

S10

 – Sometimes even after the 10 day request has been sent, the adjoining owner still does not respond.

 – The building owners’ surveyor has the authority to appoint a PW surveyor to represent the adjoining owners.

37

Schedule of Condition

( SOC – page 1)

 – This is the way I present my SOC, however PW surveyors have their own way of presenting these and in different formats.

 – There is no wrong or right way, just as long as the information is recorded in a manner that can be referred to later.

 – Photographs are normally taken and presented on a contact sheet, with a disk held in the office files of both surveyors.

38

Schedule of Condition

( SOC – sketch )

- With lots of issues to record on the SOC, it is sometimes easier to do a simple sketch and attach that to the schedule.

39

Typical Award

Page 2

 – Identify the owners, address & type and date of the notices served, with relevant subsections

 – Confirm that there has been a dispute or deemed dispute.

 – Refer to the appointments of the PW surveyors and selection of the Third Surveyor

 – Particulars of the determination referring to the party wall, excavations, SOC and attached drawings.

40

Typical Award

Page 3

- Refer to notifiable works being permitted

- Refer to The Conditions that affect the notifiable works

- The Conditions would generally cover the precautions to be taken, method statements required, disturbance and the timing of the works.

- The non-notifiable works can still be a nuisance to the adjoining owners, but the Act and hence the Award has no jurisdiction over these.

41

Typical Award

Page 4

42

Typical Award

Page 5

- Other clauses would include for: adjoining PW surveyor fees and other procedures to be taken under the Act (i.e: service of the Award and rights of access for PW surveyors).

- PW surveyors cannot determine or change existing easements

43

Typical Award

Page 6

- The Notices expire in one year from their service. It has been considered common practice to determine that the Awards expire a year after they are served.

- PW surveyors do not deal with the design therefore matters under CDM regulations are referred back to the designers.

- Rights of Appeal under S10(17), advised in the Award and publication letter.

44

Typical Award

Page 7

- It is becoming common practice to include a document schedule in the Award that is signed, instead of signing each individual drawing.

- Also it is becoming acceptable with the ease of computers to have drawings at a reduced scale. A further copy of the unsigned Award and drawings in pdf format are held on PW surveyors computers and on data discs.

45

Publication letter

S15 (Service)

- Service (publication) of the Award, must be sent by post or delivered by hand to the person it is address to.

- Do not put the Awards or Notices in the letter box. (It must be in person)

- Avoid recorded or special delivery post. The issue here is that if the recorded or special delivery is not signed for, you then become aware it has not been received.

- Certificate of posting at the post office is a good record.

46

Consent to Special Foundations S7(4)

- The letter of consent to special foundations, should also acknowledge the possibility that future works may require compensation to be paid as a result of the special foundations S11(10)

- It is the adjoining owners who gives the consent, based on a standard letter prepared by the PW surveyors.

47

Request to Act

S10(6) & S10(7)

- If either PW surveyor neglects to act effectively then a 10 day request to do so can be sent

- In practise this can be taken the wrong way, so it is important to try and discuss issues first before sending the letter.

- To take matters “ex parte”, can also lead to issues. The Award that may result is more likely to be challenged in court.

- It is better to get the Third Surveyor (with your appointing owners approval) to agree the outstanding items and sign the Award with you.

48

An enabling act

(clauses in the Award)

- The Act allows for payments to be made for needed repair works to the party walls (party fence walls) to be charged against the adjoining owner. S11(4)

- In this case it had already been acknowledged that the wall was already defective and was “want of repair” S2(2)(b). Very important that a notice had been served to that effect prior to agreeing the Award.

49

An enabling act

(clauses in the Award)

- The Act allows for trespass to undertake works to party walls (fence walls).

- In this case, the requirement for access is dependent on providing a method statement.

Case Study 1 – Simple

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

50

- Employed as building owners surveyor to initially serve Notices, in Nov 2013, for a terraced property requiring a single storey rear extension, in Enfield. Hence: two sets of adjoining owners.

- Reviewed drawings and land registry details.

- Prepared section 6 notices, for service.

- Informed architect and appointing owners (building owner), I need plan layouts and sections showing depths, before I can serve valid notices.

- Eventually received updated drawings. However, realised from the revised drawings I need to now serve notices for section 2 works.

- Served notices, with letters and acknowledgement forms, in Feb 2013.

- Received consent to works on the acknowledgement forms within two weeks following service of notices.

- Informed building owners, copying in the consent forms.

- No dispute, no further action.

Case Study 2 – Complex, page 1

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

51

- Employed as building owners surveyor to initially serve Notices, in August 2011, for a terraced property requiring a loft conversion, in Wandsworth. Hence: two sets of adjoining owners.

- Reviewed drawings and land registry details, served notices.

- Adjoining owners to right hand side consented.

- Adjoining owners to left hand side went into dispute, surveyor appointed.

- Schedule of condition done, drawings provided, Awards served.

- No further issues.

- Building owners then decided on a basement extension, in … 2012.

- Reviewed drawings and land registry details, served notices.

- Both sides went into dispute, and appointed surveyors.

- Left hand side went smoothly, Schedule of Condition, drawings provided, Awarded.

- No further issues on left hand side.

- However, right hand side, I had to send a 10 day request to appoint a surveyor.

- Right hand side, had appointed a surveyor but he was very slow to act.

- Right hand side, had a previous basement extension, so defrayed costs were due, in order for the building owners to make use of the wall.

Case Study 2 – Complex, page 2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

52

- Checking engineer was also appointed.

- Adjoining owners surveyor had his own, opinions on the defrayment prices, and would not accept the prices I had sought from 5 independent builders.

- The adjoining owners surveyors started dragging his feet on resolving the dispute, and I was forced to send a 10 day request to act effectively.

- Instead of acting the adjoining owners surveyor decided to inform me on a Sunday night that he was going on holiday from two weeks from the Monday.

- The works to the basement had already started, since the Award to left hand side had been in place for over two months already.

- In order to avoid further delays, and with the building owners permission I had to get the Award in place by getting the Third Surveyor to sign with me, leaving the defrayment costs and the adjoining surveyors fees for an addendum award.

- The Award was served, and works could thereby continue on the right hand side.

- The adjoining surveyor returned, and continued insisting that his price for the defrayment costs was correct.

- In the meantime, large areas of overspill was discovered from the previous basement works undertaken by the adjoining owner.

- The adjoining owner surveyor could now not agree on the costs of the overspill that would be needed to be deducted from the defrayment costs……

Case Study 2 – Complex, photos

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

53

Case Study 2 – Complex, page 2

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

54

- The building owner did not want to pay for the costs in referring the issues back to the Third Surveyor, and principally instructed me to accept the price for the defrayment costs that the adjoining surveyor was proposing.

- Addendum Award was signed and served.

- Informed in June 2013, that damage had occurred to the right hand adjoining property, mainly due to vibrations caused by the cutting back of the overspill areas.

- Undertook an inspection of the alleged damage in Jun 2013, in attendance with adjoining owners surveyor.

 We agreed on the extent of most of the damage, except one crack which I felt was too remote, and was not recorded on Schedule of Condition because of its remoteness, the fact it was hidden at the time of the SoC, and that other cracks on the same wall had not changed in size or length.

- Unfortunately, the building owners, against my advice, insisted that the adjoining owner seeks compensation through the builders insurance policy. I therefore had to hold back and not get involved as dealing with insurance issues is not part of my remit as a party wall surveyor.

Case Study 2 – Complex, page 3

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

55

- Many months passed, when eventually the insurance company came back to the building owner, and stated that they can not deal with the claim, until the party wall surveyors agree on the amount by way of Award.

- In the meantime, I had also discovered that the sum being claimed by the adjoining owner and the surveyor, for the damage was approximately £35,000 plus VAT. The price was given by the same builders who caused the overspill to the basement.

- Again against my advice the building owner tried to get the builder who caused the damage to give his own price. However, the adjoining owner did not want the builder on his property.

- The building owner managed to get an independent builder to provide a price. The price came in at approximately £6,500 plus VAT.

- The building owners could not agree with the adjoining owners price, and the adjoining owners were not going agree on the building owners price. However, both parties agreed that matter needs to be referred to the Third Surveyor

- The Third Surveyor, adjoining surveyor and myself (the building owners surveyor) met on site to discuss the extent and points of difference.

- The Third Surveyor made his Award (determination of the dispute), in favour of the Building Owners. The Adjoining Owners required to pay my fees, the Third Surveyor fees , and was Awarded costs of damage at lower figure of: £6,500 +Vat

Conclusion and questions

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

56

- I hope the general points I have shown help architects and their clients, in order to identify the normal areas, especially costs that need to be considered and allowed for in any building works that come within the remits of the “Act”.

- The best way to look at the “Act”, is as an enabling “Act” which gives certain rights that under common law would not be permitted (i.e: trespass).

- If you can also imagine that it is also meant to be a neighbourly “Act” which protects and compensates owners of adjoining properties from potential and actual damage, without having to take matters to court under civil action, where matters can really get expensive.

Thank you

Bernard Humphrey-Gaskin

Tel: 020 8289 0800

For further information: b@abpriba.co.uk

http://www.partywallsurveyors.uk.com

Disclaimer: This is general guidance only, and should not be relied upon for specific matters or points of law.

57

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s