Options When Your Neighbour Fails to Serve a Party Wall Notice

Prior to undertaking works falling within the scope of the Party Wall etc. Act 1996, owners have an obligation to formally notify the owners of affected adjoining properties and obtain their consent of go through the Act’s dispute resolution procedure. But what can an adjoining owner do if their neighbour fails to comply with that statutory obligation?

As it’s been a hot topic over the last couple of years, let’s start with what they can’t do: appoint a surveyor. It was finally established by the Court of Appeal in Power & Kyson v Shah [2023] that an adjoining owner can only appoint a surveyor if a notice has been served. No Notice, No Act as the mantra goes. While the court’s judgement was disappointing it was good to have some clarity. So where does that leave adjoining owners?

The options available depend upon how far the works have progressed. That’s not always easy to determine as the building owner may not allow access, especially if the owners are already on bad terms, as is often the case. The adjoining owner will have to make a judgement based on what they can see or, for example, what’s being delivered to site.

If the works are at an early stage, I would strongly recommend that the adjoining owner have a record of the condition of the parts of their property that are at risk from the proposed works prepared. Ideally this would be done by a surveyor experienced in party wall matters but a set of photographs that can be shared with the building owner is better than nothing. There’s a cost implication to engaging a surveyor but, there’s a possibility that the costs can be recovered from the building owner later (see below).

I would also recommend discussing the matter directly with the building owner if possible. It may be that they are unaware of the proper procedures or have been badly advised. If there is still a substantial amount of work falling within the scope of the Act to be completed, they may agree to put matters on hold and belatedly comply with procedures. The two owners can even agree to treat notifiable work already undertaken as if they had been notified in advance.

If the building owner is aware of the Act but has intentionally failed to comply with its requirements, there are really only two options available:

1. Apply for an Interim Injunction

If the court grants an interim injunction, the building owner will be forced to pause the works and either follow the procedures laid down in the Act or, return to court on a later date to explain why it was reasonable not to do so.

It’s always wise to seek legal advice before applying for an injunction and that makes the process expensive. The adjoining owner would have to be confident that works falling within the scope of the Act are being undertaken as otherwise they may end up having to compensate the building owner for any resulting delay.

An adjoining owner who successfully demonstrates that an interim junction was necessary, can apply to recover their costs but solicitors tell me it’s very rare they will be awarded their full costs.

2. Do Nothing

By that I mean do nothing about the fact that the building owner has failed to serve notice. This will generally be the best option where the risk of damage is minimal.

As mentioned earlier, it would still be prudent for the adjoining owner to take a record of the condition of their property at the earliest possible stage as this will be helpful if there is a dispute relating to either the cause of damage during or following the works. When notice has not been served, such disputes will be determined by the courts rather than the tribunal of appointed surveyors.

It may be encouraging to hear that the courts have in the past taken a dim view of building owners who proceed with work without serving notice and go on to cause damage to a neighbour’s property. In one noteworthy case, known as Roadrunner Properties Limited v John Dean, the judge made it clear that the building owner should not gain advantage by his failure to comply with the statutory requirements. In light of this, he decided that the burden should be on the building owner to disprove a link between the damage and the work instead of the reverse which would be the normal position at common law.

If you live in the Cambridgeshire of north Essex area and require advice on a party wall matter, you are welcome to contact the author of this post on 01799 543532 or via email.