Tuesday, 17 February 2015

A lack of understanding of the Party Wall etc Act 1996

It is almost 18 years since the Party Wall etc Act 1996 came into force in the majority of England and Wales and yet still we frequently come across many people who are largely unaware of the nature and extent of works that typically, may fall subject to the Act and thus, require service of written Notice on the adjoining property owner(s) before commencing works.

When that comment is applied to members of the general public it is perhaps understandable, but we still find that we far too frequently have to make that criticism about individuals (and also companies) who are actively involved in the design and construction of building works (especially domestic projects).  

In the perception of the customer these individuals and companies might be expected to have a reasonable working knowledge – or at the very least a good awareness of – most if not all of the technical and legal matters that pertain to their building project – and that would include the Party Wall etc Act 1996.

But in far too many instances they frankly do not…..

As an example:-

The most recent “hot topic” insofar as works falling subject to the Party Wall Act is concerned relates to the notion of what constitutes “cutting into a party wall”?

Section 2(2) of the Act states that “…A building owner shall have the following rights….(f) to cut into a party structure for any purpose (which may be or include the purpose of inserting a damp proof course)…”

Ever since the Act came into force surveyors have been debating what “cutting into the party structure” actually includes and perhaps more importantly, what it does not include. 

It has long been held to be the case that removing wall plaster from a party wall does not fall subject to the Act; however, a decision by a Judge in the Central London County Court in 2013 determined that the removal of wall plaster using mechanical tools would constitute cutting into the party wall, whereas if the plaster was so old and dilapidated that it could be prised away using a putty knife or similar then it would not fall subject to the Act.

How many builders out there are aware of this comparatively recent development in the interpretation of the law?

Does anyone else have any experiences or comments they wish to share on this subject?

Tuesday, 3 February 2015

Failure to serve Notice under the Party Wall etc Act 1996

Taylor Tuxford Associates has over the past few months been involved in three formal Disputes under the Party Wall etc Act 1996 that have arisen following building works that have commenced without first serving the requisite Notice upon the adjoining property owners.  We are currently also instructed in regard to a fourth such case, which is still in the process of being determined.

The disputes in question arose because the adjoining owners in each case claimed that damage had been caused to their property as a result of the works undertaken by the building owner’s contractors.

The Party Wall etc Act requires that in instances where a building owner wishes to carry out works to their property that fall subject to the Act, then they must serve written Notice upon any affected adjoining property owners.

It is a generally held principle in English & Welsh Law that the “accused” person or corporate body is “innocent until proven guilty” and the accuser is obliged to provide that proof.  However, in instances where “work falling subject to the Act” (i.e. the Party Wall etc Act 1996) is carried out without compliance with the requirements of the Act in regard to the service of a Notice etc, then this principle may not apply.

This stems from a Court of Appeal judgement in 2003 where Lord Justice Chadwick stated in his judgement that “…if it can be shown that the damage which has occurred is the sort of damage which one may expect to occur from the nature of the works that have been carried out…he (i.e. the building owner in that instance) should not be allowed to obtain forensic advantage by his own failure to comply with the statutory requirements…”

In other words, the Judge applied a reverse burden of proof and the building owner was thus obliged to prove that the damage had NOT been caused as a result of his building works.  From our extensive experience, this is extremely difficult to achieve in the majority of cases “after the event”.

In the case of the two disputes referred to earlier, the end result was that the building owners in each instance faced substantial additional expense relating to the repair of the damage plus the fees of the surveyors in resolving the dispute.

Does anyone reading this entry believe that they may have inadvertently placed themselves in a similar position?

Taylor Tuxford Associates’ advice is simple – if you are having building works carried out, seek the advice of your architectural designer and/or your builder whether the works will in any way fall subject to the Party Wall etc Act 1996 and if that is the case, ensure that the appropriate written notice is served on the adjoining owners.