If your neighbour is carrying out construction work on a shared wall, or excavating close to your property, then the Party Wall etc. Act 1996 may require them to serve a notice which entitles you to appoint a surveyor to protect your interests.
This would entail the surveyor preparing a report (called an ‘award’), which would address matters such as how and when the work is to be carried out, contain a photographic record of the condition of your property, and would be considered as independent evidence if you later claim that damage has been caused by the neighbour’s works.
But what if your neighbour fails to serve the required notice? This might be tempting to them as construction work can be expensive enough without having to pay for you to have a surveyor. Are you still able to invoke the Act unilaterally, and appoint a surveyor to prepare an award which will be binding on the neighbour?
No, said the High Court in the recent case of Shah v Power [2022] EWHC 209 (QB). Only the ‘building owner’ (the one doing the work) can trigger the Act’s provisions.
In this particular case, the work had already been done, but Mr and Mrs Power claimed it had caused damage to their property. Mr Shah had denied that the work engaged the provisions of the Act and had refused to serve a notice. It was held by the High Court, confirming the previous decision in the County Court, that it was not possible for the Powers to apply the Act’s provisions retrospectively and use the ‘award’ procedure. In effect, this means “no notice, no Act’. They would instead just have to pursue a claim for damages in the Courts in the usual way.
So, if you are aware that your neighbour is carrying out work that you believe requires them to serve a notice, but they fail to do so, the remedy is not to try to invoke the Act yourself. Instead, you should seek an injunction preventing the work from going ahead until the required notice is served. You would expect to recover the costs of that injunction if you succeed, and you can then use the Act’s provisions and appoint a surveyor at the neighbour’s expense.
For more information regarding this issue, please do not hesitate to contact me at paul.davis@buckles-law.co.uk or on 0115 985 3483.
