Resolving a building dispute over a party wall

The Party Wall etc Act 1996 (Act) provides a mechanism to prevent or resolve disputes between neighbours who are disagreeing over work being done to a shared wall, or when excavations might adversely affect a neighbouring building.

‘On the face of it, the Act states that if you carry out work on your property which causes harm to your neighbour’s property, you are responsible for making good the damage,’ says Michelle Dixon, a Partner in the Construction law team with HK Law. ‘However, a recent Court of Appeal ruling threw up some interesting insights on how courts will assess the cause of damage in a case where the damaged building had pre-existing defects.

Michelle Dixon provides guidance on how to avoid falling foul of the Party Wall Act’s provisions and explains the implications of the recent ruling in Taylor v Jones & Anor.

What are your rights and responsibilities under the Act?

The Act sets out statutory steps you must follow when you want to carry out work on your property that could affect an adjoining homeowner (and occupier). This would include building on the boundary of your property and the adjoining property; carrying out works which affects an existing party wall or structure; or excavating close to an adjoining building.

The Act gives you a statutory right to carry out any of the works listed in Section 2, with some of the most commonly used rights being to:

  • repair a party wall;
  • demolish and rebuild a faulty party wall;
  • insert a damp-proof course or flashing;
  • underpin a party wall;
  • cut into a party wall to support a beam;
  • raise the height of a party wall (e.g., to add an extra storey), or extend it downwards (e.g., to build a basement); or
  • remove a projection from a party wall, such as a chimney breast.

Depending on the work proposed, the Act specifies a timeframe before you start any such work to send or give a party wall notice to all adjoining owners (and occupiers). The notice should outline when and how the building works will be carried out, how the party wall will be accessed, and it should include a condition report which sets out evidence of the state the adjoining properties are in before you begin work.

Your neighbour can consent, refuse or simply ignore your notice. Your neighbour may, for example, be willing to consent if you agree to change your plans, such as limiting the hours that work can be conducted or using a quieter way of carrying out the job.

If they point-blank refuse to consent, ignore your notice, or fail to agree despite suggested compromises, do not start the work regardless – if you do, your neighbour can get an injunction to stop the work until the dispute is resolved. Instead, you should appoint a party wall surveyor who will work with you and your neighbour (or your neighbour could appoint their own party wall surveyor) to settle the dispute and issue a party wall award outlining the decision. This will set out the present condition of the party wall, the work to be carried out, the safeguards needed to protect adjacent properties, timescales for every phase of the work, and rules regarding the surveyor’s building inspection and also costs.

Under the Act, you must:

  • not cause unnecessary inconvenience to your neighbours while the building work is in progress;
  • provide temporary protection for adjoining buildings and property where necessary; and
  • make good any damage caused by the works or make payment in lieu of making good.

As long as your planned work is lawful and you abide by the Act, you should then be able to go ahead, although either party can appeal against the award to the county court within a strict deadline. The court can change or overturn the award or allow the decision to stand.

Common causes of a party wall dispute

While a neighbour refusing to consent is the most common form of party wall dispute, disagreements arise for other reasons including:

  • unwarranted intrusion onto the neighbouring land;
  • excessive noise;
  • unsociable work hours; or
  • whether the works caused the damage to the adjacent property.

Cause of damage and the Taylor case

The issue of cause of damage was recently considered by the Court of Appeal in the Taylor case.

Mr Taylor, having correctly followed the Act procedure, carried out work on his garden which caused the rear wall of the two adjoining properties to drop by about 2mm. However, because of major pre-existing defects to the respondents’ properties, this caused the neighbours’ internal walls and floor slabs to drop by 40mm.

The damage caused by the works could not be fixed without also repairing the pre-existing problems (underpinning a wall and filling a void under the floor slabs). A surveyor’s party wall award, under the Act, required Taylor to pay for both the damage he had caused and the subsequent damage, even though it was agreed that any slight movement could have caused substantial damage at any time.

Taylor appealed to the county court, which confirmed Taylor was liable to pay compensation, but reduced the amount to 75% because the neighbours had failed to mitigate their losses. Crucially, it still held that Taylor should pay towards repairing the pre-existing problems.

Taylor then took this to the Court of Appeal, which overturned that part of the Judgment, holding that Taylor was not responsible for paying to fix the long-standing defects as they were not caused by his works – the defects had merely been brought to light by his works. The appeal court sent the case back to the county court for a reassessment of costs.

How we can help

If you have issues over building works, including those related to a party wall, contact Michelle Dixon. Michelle can help negotiate with your neighbours to try and settle the dispute amicably or handle your case if the matter needs to go to court.

For further information, please contact Michelle Dixon, a Partner in the Construction law team on 01202 725400 or email HK Law has offices in  BournemouthBlandfordCrewkerne,  DorchesterParkstonePooleSwanage, and Wareham.

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