Saturday, 11 July 2009

The Party Wall etc, Act 1996

I've been concentrating on other more presssing things lately (the title of this blog will give a hint). In general, the PWA , despite it emerging from the Gummerite Department of Environment, is a pretty good piece of legislation. Essentially an updating of a 1938 Act that originally applied only to London, the PWA now applies to England and Wales as well. It is necessary in a small, overcrowded island where they're not making land anymore. It enables property owners to develop their property while at the same time protecting the interests of adjoining owners and keeping 98% of developments out of the courts thereby saving time and money. One or two party wall surveyors are appointed to draw up a schedule of condition of the properties with photos and produce a Party Wall Award setting out things like order of work etc. The common law duty of the owner to the neighbour is thus formalised and clear, agreed evidence is available in case anything goes wrong with the build.
As is made clear in the excellent explanatory booklet for the layperson, the owner must serve either one or two months' notice on the neighbour before starting works. Of course, with the neighbour's written consent, work can start earlier. But, here is the flaw in the Act. Although it states in the Act that the owner must serve notice, the only recourse for the adjoining owner in those cases where the neighbour fails to serve notice is to obtain an injunction to cease work until the PWA procedure is carried out. Failure to obey an injunction is contempt of court which may result in a fine or imprisonment. However, injunctions cost about £1,000+ and one may have to return to court to have one enforced - more expense and bother. Compare this arrangement with the duty of the adjoining owner to allow the neighbour's surveyor and builders unobstructed access onto his land for working and placing foundations. Refusal to comply is a criminal offence punishable by a fine of up to £1,000 (s.16 PWA, 1996).
My modest one clause amendment to the Act is the creation of the offence of failing to serve proper notice on an adjoining owner. The punishment will be on the same level 3 scale as obstructing or hindering.
And yes, if you are wondering, our delightful neighbours attempted to foist a ten day take it or leave it otherwise any damage is your responsibility letter on us back in May. Their PWA surveyor apponted by their solicitor, they are really that nice sort of people, was still waiting to be formally appointed last week. Their builders dug out a trial pit on the boundary to assess foundation depths on Wednesday (still not filled in) without notice - I thought works were starting prematurely, to be blamed in reply by the husband for causing a three month delay to works. My advice to any neighbour of property developers is to read the links, and consult a RICS PWA surveyor as soon as possible if you think your neighbour can't be trusted to treat you as they would expect you to treat them. The building owner pays for both parties' survey costs (indeed with reasonable neighbours a single PWA surveyor is sufficient) so you have nothing to lose.

8 comments:

James Higham said...

I've just witnessed a slanging match between neighbours which amounted to sheer greed and left one party financially crippled and all over boundaries.

Gallimaufry said...

Alas boundaries are indeed a cause of much enrichment for the legal community. The PWA doesn't settle boundary disputes. Establishing the exact location of boundaries unless clearly stated in title deeds is very difficult and owners should always weigh up the value of a few inches of garden and very large litigation costs.

Thud said...

I just went through a pwa problem last month which resulted in my rebuilding an aged and dangerous wall without neighbours financial input...it just wasn't worth the bother.

Gallimaufry said...

Thud: you're the sort of knowledgeable, capable and considerate builder/developer who makes the pwa unnecessary and in the case you mention the neighbour's share of the rebuilding cost was probably less than surveyor's fees. The pwa allows the adjoining owner to give written consent to let the owner who proposes building work to go ahead without a party wall award provided a notice is served and the neighbour is happy that things will be done properly. It saves on survey fees. The owner who is building is still liable under common law for any damage that the works may cause to his neighbour's property. But I would recommend a getting pwa to any adjoining owner if they don't trust the competence of their neighbour.

Gallimaufry said...

Update 4 September 2009: The neighbours attempted to sack their PWA surveyor after dawdling around for weeks before he was formally appointed. They also tried to appoint our surveyor as the agreed surveyor. Our surveyor rebuffed this by stating a) that a PWA surveyor can't be replaced except in exceptional circumstances, and b)considering the amount of shit the neighbour has caused us we wouldn't agree to the same day of the week let alone have an agreed surveyor to save them money.

Anonymous said...

could you please tell me how much a PWA surveyor would cost as I am about to build up to my boundary and im sure the neighbour is going to want assurance
thanks

Gallimaufry said...

Hi,
The cheapest option is to work with your neighbour's agreement. Most people will be reassured with a neighbourly chat, explanation of the works involved, the chance to talk to your architect, building surveyor or master builder and a copy of the PW etc Act booklet well before work is scheduled to start. An offer to do additional work for your neighbour if necessary will further sweeten the pill. You will be liable for any damages resulting from your works whether or not you serve a Party Wall Notice and the precondition survey of your neighbour's property is as much for your protection as theirs. If you both agree you could do the photograpy yourselves. If your neighbour does want formal notice(s) served it is possible to use the template letters in the PW etc A booklet or you can agree to appoint an Agreed Surveyor who will draw up the award. Your neighbour is perfectly at liberty to appoint another Surveyor at your expense. Bear in mind that Party Wall Surveyors do not work for the interests of the property owners but for interests of the party wall.
I recommend that you consult RICS or Pyramus & Thysbe for Party Wall Surveyors. Fees vary across the country and depend on the complexity of work involved so you should ask for estimates first. However if you budget say £750-1500per surveyor you won't be far wrong. Other building professionals envy the hourly rate that some PW surveyors charge. However, they are cheaper than lawyers so consider it an investment!

Anonymous said...

Thank you for your speedy reply.