What building work requires Party Wall notices to be served?
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- เผยแพร่เมื่อ 19 ก.ค. 2020
- About to start work on a property? Not sure if you will need to serve Party Wall notices on your neighbours? Watch this video where Tony Pearson, a partner at Sussex Surveyors LLP, outlines the work that requires notices.
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Thanks for this , concise and very helpful
REALLY HELPFUL Who pays for the 2 Surveyors and do you recommend it. Does the Survey count paths and buildings please Thanks
Very interesting thank you for your advice. I have an interesting problem that might apply to many people: I have a back yard (terraced house) with a shared dividing wall with the neighbours. Their house is rented and I have been unable to contact them to discuss the party wall which is disintegrating top down. It needs repair but we have no way of agreeing how hat or when. We have their home address but they do not answer. How does one comply with the act in that case?
Contact an experienced Party Wall Surveyor who can guide you through the processes laid out in the Act. If you're in Sussex we can help. Otherwise try pyramusandthisbesociety.org/find-a-surveyor/
Well presented and informative. Just wondering, 2mtr high standard wooden panel fence at 1.5mtr from neighbours house does that come under this act? No trench excavations just holes.
We would say no. In the same way as putting up a shelf or picture could (theoretically) be considered cutting into the Party Wall but it isn't, as it is considered de minimis. Fence posts would be the same.
@@SussexSurveyorsLLP Many thanks
Tony, I'm afraid you got just about everything wrong. You only serve a Party Wall Notice if you are a 'building owner'. Under the London Building Acts this was defined, in effect, as anyone carrying out work that affected a party wall. So, in inner London, prior to 1997, I would agree with your advice. But the 1996 Party Wall act is quite different: now the definition of 'building owner' is, in effect, anyone wishing to take advantage of rights offered by the Act. The 1996 came into force on 1st July 1997, and your common law rights weren't affected. If you'd been able to carry out the work on 30th June 1997 you could equally well carry out the work on 1st July. 'Joker Joker' below mentioned Shah v Kyson and Power case, and that is most interesting case. In the High Court last year HHJ Eyre opined the Raheel Shah (whom it was alleged had removed a chimney breast on the party wall) was unlikely to be defined as 'building owner' as at no point had he purported to act under rights given under the 1996 Act. (Witness the fact he had served no notice.) The High Court decision was upheld in Court of Appeal this month, where Lord Justice Lewison stated that a building owner may rely on his common law rights. So, Mr Shah done nothing wrong in not serving a notice even if he had removed his chimney breast, - his common law rights allowed him to do that.
Might Mr Shah's neighbours have got an injunction to make him stop work and serve notices whilst he was still carrying out work to the party wall? No, of course not. You can't make someone who is not a building owner serve notice on someone who is not an adjoining owner.
Lee Kyson (who has now lost his case three times) believes, given these judgements, that (and I quote) if you are a building owner and you do not wish to pay surveyors and do not require access to your neighbour’s property then you do not need to serve a party wall notice. As stated above, in accordance with judgement, you are not a building owner as defined by the Act and if you are not a building owner then you are not breaching the Party Wall etc. Act 1996. Therefore can there be a basis to support an injunction?
I emailed Michael Paget, the barrister who successfully defended Mr Shah against Mr Kyson last week to suggest that anyone working on a party wall these days, who can rely on common law rights, it’s as if the 1996 Act didn’t exist. And what great news that is for us all (except, of course party wall surveyors). Mr Paget essentially agreed with me.
I'm an architect, was was taught at university that Party Wall legislation (then the 1939 amendment to the London Building Acts) was written by party wall surveys for the benefit of party wall surveyors. And I think that was true back then. But the 996 Act is quite different, however there has been a conspiracy amongst party wall surveyors to have us all believe that the 1996 Act operates much as the London Building Acts. Fortunately we all now noticing the definitions in section 20 (after 25 years). I admit I'm as guilty as anyone in not reading s20. I reckon there'll be a lot less work for party wall surveyors in the future.
Hi Graham. Many thanks for taking the time to write such a long comment. You use the word 'wrong' but I would point out how the video was recorded in November 2017. As you say, the latest appeal in the Shah case was decided within the last few weeks. The video is not intended as a definitive interpretation of the Act, as the Courts are the only ones that can provide this, but rather an outline as to the Act. The advice still stands for anyone about to do work on their property - they can look at sections 1, 2, & 6 of the Act and see if they are doing anything that is listed in those sections. If they are they have a choice - serve the notice(s) (themselves or via a surveyor) or don't serve the notice(s). If they choose not to, then there is a chance they will end up in Court, in the same way Shah did, explaining why they didn't. The decision on costs to surveyors vs costs to solicitors, barristers etc. will be theirs to make.
@@SussexSurveyorsLLP Hi Tony.
As you may have guessed, I have a bit of a thing against party wall surveyors. In 2021, at my own house, around £30k in party wall surveyors fees were wasted in an attempt to get an Award to build within 3m of a garden (party fence) wall, and to raise it (using cantilevered steel beams) to use as a party wall. It would have cost £8k to rebuild the old wall had it fallen over, but the neighbour from hell was being as difficult as possible and actually managed to get rid of three surveyors. Threatened everyone with her London lawyer (Matthew Hearsum) and eventually the last two surveyors resigned on the same day. And so desperate were they to escape they waived the last £14k of their fees. (So I only paid £16k of that £30k.) And I still don’t have the s.2(2)(I) award. So the idea that the party wall Act is there to cheaply resolve disputes, makes me smile. And I thought the party wall surveyors behaved disgracefully. I knew more about the Act they did. So that’s the background to my antithesis towards the Party Wall Act (and party wall surveyors).
Nevertheless, you are, at least in my view, quite wrong to say that you need to serve notice if you do anything listed in s1, 2 and 6. (But I know my view is currently a minority view.)
John Anstey wrote in his introduction to the Green Book that it’s important to read an understand the definitions in section 20. The new definition of ‘building owner’ is, in effect, someone who wants to take advantage of the rights that the Party wall Act is able to offer. This contrasts with the London Building Acts (where anyone affecting a party wall had a statutory duty to serve a notice). It’s important to realise that the 1996 Act did not remove a potential building owner’s common law rights.
Only a ‘building owner’ can serve Notice and initiate the Act. So, as a potential ‘building owner’, you don’t look to see if you’re doing anything listed under sections 1, 2 or 6. You look to s20 to see if you are defined as a ‘building owner’. If you are not desirous of exercising rights under the Act (because common law rights are adequate) you are not a ‘building owner’. Hence you don’t serve a Notice. And it’s ‘no notice, no act’. And the neighbour (who technically isn’t an ‘adjoining owner’) can’t expect to get an injection to compel someone who’s not a building owner, serve notice on someone who’s not an adjoining owner.
Though my view is a minority view (and is directly contradicted by official government advice) I can say that after reading the Shah v Kyson & Power judgements, that High Court and Court of Appeal judges agree with me, the losing Party (Lee Kyson) agrees with me, and Michael Paget (the winning barrister) agrees with me. And, so, surely the rest of the country is about to come round to my way of thinking.
Yes Raheel Shah ended up in court, - but only because Kyson, Power and the Panayiotous misunderstood Party Wall law. (And most informed opinion knew that Lee Kyson & Ken Power were wrong in law.) It’s the obiter remarks of the judges that I find most useful. Reading the definition of ‘building owner’ quite transforms the standard understanding of the Act.
@@user-lh6yz7jz8o Sorry to hear of your experience. Yours is certainly the extreme and not the norm. Whilst the Shah case may be the start of a tide turn, for now my advice still stands - serve the notice if you're doing work. It will help to provide the opportunity for the Schedule of Condition to be done on neighbouring properties; and be cheaper than being dragged into a common law matter.
@@SussexSurveyorsLLP Before 1st July 1997 I never felt concerned that there was no Party Wall Act. I don't think anyone did, unless they wished to exercise rights that only the Party Wall Act provides. Was it the norm pre 1997 to prepare out a schedules of condition? Not in my experience. I started my practice in 1984, and had no problems with the lack of a Party Wall procedure. In Scotland they still don't have a Party Wall Act. Is there a movement for a Party Wall Act in Scotland? If there is, I've not heard about it.
The Party Wall Act was written by Party Wall Surveyors for the benefit of Party Wall Surveyors. Well, at least the London Building Acts were. But Parliament didn't let them get away with it with the 1996 Act. Yet a conspiracy if silence has served Party Wall Surveyors amazingly well for the last 26 years. £200 an hour for a job where no qualifications are required, and a week of reading would allow you start a very lucrative new profession. No wonder every Party Wall Surveyor's website I've seen (and I've seen very many) would have you believe that the 1939 definition of 'building owner' is still in force. They ignore the 1996 definition.
Still, I detect you're coming around to my way of thinking. You might be my first convert!
No Notice not Act "Shah v Power (2022)"
Yes, that recent case has created that situation - anyone adjacent to building works can now longer make use of the dispute resolution mechanisms within the Act if they aren't served with notices when they should be. Instead they now have no choice but to go to the Courts/a solicitor