Stephen Hawes MFPWS MCIOB CIHCM MCIArb AssocRICS MAPM MCABE C. Build E
What to take into consideration when required to serve Party Wall Notice on your adjoining owner (s)
If you have recently had a planning application granted for your project or have been given the green light via a permitted development certificate, then congratulations, your dream home project is going to happen, but first, are you aware that if any part of your proposals are notifiable under the Party Wall etc. Act 1996 then you have a legal obligation to serve valid notice on your adjoining owner (s).
So, what is the first step to take when faced with having to serve notice in accordance with the Act? Firstly you will want to establish if, in fact, there are elements of your proposals that are notifiable, common projects that include notifiable works are ground floor extensions, loft conversions, basement works, chimney removal etc. if you have been granted planning permission for a project such as any of these then we would advise that you speak with a qualified party wall surveyor to establish the notifiable elements and seek advice on the process and the timescales involved.
Ideally, you will not want to be in the position where you have just received consent for planning, have found your contractor, and are excited to get works started… but! Then discover that there is a two-month notice period for works on a party wall and one month for works involving the boundary line or excavations. Straight off the bat, you find yourself under pressure and not having the best introduction to the party wall act, especially if you have an enthusiastic contractor snapping at your ankles wanting to get started!
We would recommend planning so that you do not leave the serving of notice to the very last minute and avoid a pressured, unpleasant scenario. Once you have spoken with a party wall surveyor, even if planning is not yet granted, serving notice as soon as practically possible would be prudent; it can be difficult to predict the actual length of time the process will take or the response you will get to the notice served and with a two month notice period in mind and the possibility of receiving a dissent to the notice served we would advise allowing even three months for the party wall process to be completed for some of the residential projects we mentioned earlier in this blog.
Now that you have spoken with and found a surveyor that you would like to appoint, remember a well know qualified surveyor is likely going to be the best option, as when you have appointed a surveyor in writing, that appointment cannot be rescinded unless he/she take it upon themselves to deem himself/herself incapable of acting.
Your appointed surveyor will now move forward and serve notice on your adjoining owners (s). The adjoining owners will have 14 days in which to respond, and there will be three possible responses to the notice served. They can consent to the notice served; in this instance, we recommend that a schedule of condition survey is undertaken by your party wall surveyor to record the condition of the adjoining owner (s) property prior to the notifiable works commencing; this should be undertaken by a suitably qualified and experienced professional, where a written report and images can be provided as evidence in the instance that damage is reported as a result of your notifiable works. If consent to the notice served is received, then the notice period is waived, and you will be free to commence your work upon completion of the survey.
Although consent has been received to the notice served and your works are underway, it can still be possible that a dispute could arise relating to the notifiable works you have served notice for, if this is the case, a deemed dispute would then be on the record, and your surveyor (s) will get involved to resolve that dispute via a party wall award. Practically this could be problematic as it may be necessary for notifiable works to halt until an award is served and the dispute is resolved.
The other possible responses to the notice served are a dissent with the adjoining owner (s) either concurring to the appointment of your surveyor as the jointly appointed agreed surveyor or dissenting and appointing their own surveyor to join with your surveyor in implementing the legislation of the Party Wall etc. Act 1996 so to resolve the dispute via a party wall award.
The singerly appointed agreed surveyor route is the most cost-effective and fastest option if your adjoining owner (s) officially responds to the notice served concurring to your surveyor’s appointment as the agreed surveyor. In this instance, there will be only one surveyor’s reasonable fee for you, the building owner, to settle, and your surveyor can work at their own pace to resolve the dispute practically and promptly. In the instance that you receive a dissent to the notice served and the adjoining owner (s) appoint their own surveyor, you would be liable not only for your own surveyor’s reasonable fee but also for that of the adjoining owners’ surveyor. The latter is where matters can become protracted, which is common when two surveyors join to resolve a dispute. Two surveyors joining can protract as you will be at the mercy of the adjoining owner’s surveyor’s availability to attend the schedule of condition survey of the adjoining owner’s property in good time, their workload, the pace they work at, and their interpretation of how the act should be implemented and its requirements, which if the two surveyors cannot agree on can be a point of dispute and delay.
With what we have discussed in mind, which is very much the process in a nutshell, although we cannot precisely put a timescale on how long the process will take, we would recommend allowing as long as three months for matters to be resolved as in the scenario where there is dissent and the adjoining owners appoint a surveyor this may well be prudent. It could be that you received consent to the notice served with a schedule of condition only or dissent, and the agreement of the singerly appointed agreed surveyor in which case it is likely that the party wall process could be completed in half the time of the three months suggested if not sooner, the three months suggested is to account for the possibility that the adjoining owner appoints their own surveyor and matters becoming protracted.
If you have any further questions having read this blog, please do not hesitate to call our office on 0208-945-5898 to speak with a chartered expert on party wall matters.