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Party Wall Notice
In 2023, the Court of Appeal had to decide on a narrow but potentially far-reaching question: if a property owner fails to serve a Party Wall Notice, can the adjoining owner rely on the dispute resolution process contained in the Party Wall Act 1996 (“the Act”)?
Surprisingly, the Court decided they could not!
Discover more about dealing with Party Wall Disputes. |
Power & Kyson v Shah: the facts
Mr Shah wanted to carry out some work on his property, including removing a chimney breast. He did not think the Act applied and so did not serve notice on his neighbours, Mr and Mrs Power.
Following the completion of the work, the Powers were concerned their property had been damaged. They instructed a party wall surveyor, purportedly under the dispute resolution procedure contained in Section 10 of the Act. Mr Shah refused to appoint a surveyor, so the Powers’ surveyor (following the Section 10 procedure) appointed one on Mr Shah’s behalf. The surveyors then purported to award Mr and Mrs Power £4,223.49 in compensation for the damage. Continuing to follow the procedure set out in the Act, the Powers attempted to enforce the award in the Magistrates Court.
However, Mr Shah issued a claim in the County Court for a declaration that the Act did not apply. The Court agreed with Mr Shah, so the Powers appealed. The Court of Appeal held that the Section 10 procedure had not been triggered as Mr Shah had not served a Party Wall Notice. Accordingly, the surveyors’ party wall award was null and void.
Comment
The Powers could (and in hindsight should) have issued a claim for damages in the County Court against Mr Shah for trespass and nuisance.
By failing to serve notice, Mr Shah could not avail himself of the rights and protections of the Act, including the right to enter onto neighbouring land. However, Mr Shah’s failure also meant the Powers:
- were deprived of the ability to seek a party wall award.
- could not serve an enforcement counter notice requiring Mr Shah to incorporate additional works under Sections 4(1) and 6(3).
- did not have the benefit of a surveyor assessing the works in advance to ensure they were carried out without damage to their property.
An adjoining owner still has remedies through the court at common law (i.e. injunctions and actions in nuisance and trespass) and for breaches of statutory duty. However, these procedures are likely more costly and time-consuming than the Section 10 dispute resolution procedure under the Act.
If your neighbour commences work without serving notice – and you act promptly – you can apply for an injunction to stop the work from progressing until they comply with the procedure set out in the Act. Serving notice brings the matter back within the remit of the Act and the Section 10 dispute resolution procedure. However, not acting promptly means, like the Powers, losing the Act’s procedures and protection.
