This post was originally published on Will Lloyd’s Linkedin Page.
This is a comment that we hear on almost a daily basis at White & Lloyd.
The reason for a lack of notice is not always of a sinister nature and can often be the result of bad or non-existent advice from the building owners designer or client team. Unfortunately non-awareness is not a valid excuse for not serving a party wall notice.
The decision to follow the Party Wall Act 1996 is not optional, however there are no penalties for the those who choose not to follow it unless pursued by their adjoining owners. There are a lot of people that therefore call it a “toothless Act”.
A notice cannot be served retrospectively for work that has already been carried out. For many adjoining owners the only solution is to apply to the court for an injunction. Unfortunately injunctions are both expensive and relatively time consuming which often means that once an injunction is served the notifiable work is already complete which renders it useless.
Though avoiding following the Act might save the building owner money up front, they still have a responsibility under common law to remedy any damage that might be caused as a result of the work. On a basement project these could be vast.
The process culminating in a Party Wall Award includes the recording of a Schedule of Conditions, which reports the state of the adjoining owners properties before the works commence. This is used to prove or disprove beyond reasonable doubt that any damage was caused by the works in the properties adjacent.
If a building owner decides not to follow the Party Wall Act 1996, recent case law has reiterated that the onus is on the building owner to prove that damage to a neighbours property was not caused by the work. This is far more difficult without any proper records taken by professionals! It goes without saying that in the whole scheme of things, the fees for a Party Wall Award are far less than the costs that the owner could be responsible for without one.