Can surveyors be appointed without a Party Wall Notice first being served?
There is a misconception borne from the notion that the Party Wall etc. Act 1996 has no teeth and cannot offer remedy for retrospective works or indeed works for which a Party Wall Notice was not served.
Let's put this into context.
The Party Wall etc. Act 1996 (1996 Act) deals with the resolution of disputes relating to notifiable works, in a domestic scenario this is usually associated with loft conversions, extensions, renovation works and new construction on or near a boundary.
Invariably these works are works likely to impact an adjoining owner or occupiers’ property and as such the 1996 Act places a legal obligation on party undertaking the works (building owner) to notify their neighbour in writing and in advance of works aka a party wall notice.
By notifying a neighbour well in advance of works you are allowing them to then consider the implication of the proposed work and allowing them to seek further advice, raise any concerns and ultimately provide an informed response.
No Notice = No Act?
What happens when a building fails to serve a party wall notice and then commences work and the adjoining owner is subsequently left aggrieved by their works?
Does the adjoining owner pursue litigation for damages and trespass, or perhaps an injunction to halt or reverse unlawful works, or can surveyors’ be appointed to address the matter under the 1996 Act?
In the case of Louis vs Sadiq  it was argued that the defendant was liable at common law (in nuisance) since he failed to serve notice and comply with the Act. Unfortunately, there is a misconception by some surveyors and indeed builders who take the view that ‘No Notice - No Act’ and recourse is saved for the aggrieved party to pursue litigation for damages and trespass, or perhaps an injunction to halt or reverse unlawful works through the courts.
THIS IS NOT THE CASE
The argument in the Louis vs Sadiq case was based on the 1996 Acts predecessor, the London Building Act of 1939 where it is highlighted under section 55 of 1939 Act “the agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter … to which a notice under this part of this Act … relates”.
Parliament in their wisdom replaced this clause in the 1996 Act under section 10 (10) “The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter ...which is connected with any work to which this Act relates ...”
In the 1996 Acts the requisite for notice was omitted from the preceding 1939 Act and rightly so.
Why should a building owner gain unfair advantage for side stepping their legal obligation to notify their neighbour and then refusing to engage in the Statutory process, and why should the adjoining owner and indeed the courts be burdened with resolving the matter through litigation.
It can be expected for matters which are bought to the attention of the Court and which could have been resolved by means of a Party Wall Award (but was not) will be looked at unfavourably as exemplified in the recent Central London County Court judgement handed down in Yamins vs Edwards (2019).
The Yamins undertook notifiable works whilst disregarding their obligation to serve a party wall notice and then the need to appoint a surveyor. In this instance the non-responsive party (Yamins) had a surveyor appointed on their behalf under section 10 (4) (b) of the 1996 Act and an Award was made which addressed the neighbourly dispute.
The Yamins appealed the validity of the Award on number of points including the fact that no notice was served (so no Award), and disputed the status of the surveyor appointed on their behalf, these were rejected and the appeal was dismissed, leaving the Award standing as well as additional costs.
It is interesting to note that the Edwards surveyor in his initial correspondence with the Yamins would have been willing to act as the Agreed Surveyor (to both parties) and noted a fee circa £1500 or less if they would have engaged and fulfilled their statutory obligation.
As a result of a surveyor being appointed on the Yamins behalf their behalf the fee increased as per the Award to circa £6000 + VAT (increase due to the additional surveyor and likely additional time trying to engage the non-responsive building owner) and compensation for the Edwards at £2700 for the damage caused by the works.
The cost incurred subsequent to Court action and appealing the Award estimated £50,000 (?).
We must remember that parliament have empowered appointed surveyors (building and construction experts) to act under a statutory duty of impartiality as quasi-judicial and quasi arbitrators in order to resolve disputes and avoid the need to involve and indeed congest the court system.
1) Surveyors can be appointed to Award on Party Wall related disputes even if notice/s were not served.
2) It can be costly and time consuming for a building owner who refuses to oblige with their statutory obligations under the Party Wall etc. Act 1996
Please note this guide has been produced for general information purposes only and does not confer legal advice or guidance. For further advice and guidance get in touch with one of our friendly party wall consultants who will more than happy to assist you based on your individual circumstance.
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