Privilege and the party wall surveyor’s file

In a number of cases I have advised on recently the party wall surveyors have declined to provide information from their file on that basis that some or all of it may be subject to privilege. This post explores the situations where privilege may arise, and where it does not. What is “Privilege”? Privilege is a rule that allows a party to litigation to withhold evidence (either written or oral) from the Court ...

[ Read More ]



Serving notices by email

On 10 March 2016 the Department for Communities and Local Government approved the first amendment to the Party Wall etc. Act since it was enacted in 1996. The Party Wall etc. Act 1996 (Electronic Communications) Order 2016 - which comes into effect on 6 April 2016 - amends section 15 of the Party Wall Act to provide for service of notices, awards and other documents by email and other electronic means of ...

[ Read More ]



Bridgland v Earlsmead Estates Limited: unnecessary inconvenience

On 1 July 2015 His Honour Judge Grant handed down judgment in Bridgland v Earlsmead Estates Limited [2015] EWHC B8 (TCC) in which the Technology and Construction Court considered the purpose of section 4 counter-notices, and whether a claim for breach of statutory duty could be made under section 7(1) of the Party Wall etc. Act 1996 (“the 1996 Act”). Background Facts The defendant is the freehold owner of a ...

[ Read More ]



Checking whether a party wall notice is valid

November 10, 2014  |   Party Wall Blog, Party Wall Notices   |    

A common problem faced by surveyors is ascertaining whether or not a notice served by or on behalf of a building owner (or more rarely an adjoining owner) is valid. The test for assessing whether notices under a statute are valid is set out by the Court of Appeal in Trafford Metropolitan Borough Council v Total Fitness UK Ltd. There are two stages. Stage 1 The first stage ...

[ Read More ]



Limitation periods and the party wall act

October 29, 2014  |   Party Wall Awards, Party Wall Blog   |    

This post started life as a discussion on LinkedIn that generated a fair bit of debate, and I thought it would be helpful to surmise what can be a particularly tricky area of law. It commonly arise where an adjoining owner is claiming money against a building owner and so this post focuses on this scenario. Similar (but not identical) provisions apply for non-money claims (e.g. for specific performance). What is ...

[ Read More ]



Trespassing walls, injunctions and damages

If a building owner builds a wall wholly or partly on the adjoining owner’s land without consent the adjoining owner may apply to the Court for an injunction requiring that wall to be demolished. However, it should be remembered that the Court does not have to grant an injunction, and may award damages instead. The Courts have developed a  “good working rule” for when the Court will award damages. The elements of ...

[ Read More ]



Damages for trespassing foundations

August 21, 2014  |   Basements, Party Wall Blog, Party Wall Damages   |    

In my last post I looked at what remedies were available to an adjoining owner when faced with underpinning that has encroached onto their land, and in particular the remedy of self-redress. In this post I will look at how the adjoining owner can recover the losses incurred in removing the trespassing foundations, which owners those claim may be brought against, and in which venue the claims may be brought. Types of claim

[ Read More ]



Removing trespassing foundations

Over the last 18 months I have seen an increasing number of cases where the underpinning from one development has encroached upon adjoining land, thereby affecting or preventing development of that adjoining land. This can be a very tricky issue, particularly where one or more of the properties have changed hands since the original works took place. This first post will look at the options open to the adjoining owner upon ...

[ Read More ]



Security for expenses part 2 – Forms of security

In my last post I looked at a possible limit on the ability for the adjoining owner to request security for expenses under section 12 of the Party Wall etc. Act 1996 (“the 1996 Act”). Turning now to the form of security, this is not prescribed. The Oxford English Dictionary defines “Security” in this context as:- “A thing deposited or pledged as a guarantee of the fulfilment of an undertaking or the repayment ...

[ Read More ]



Security for expenses part 1 – Types or work

This is the first of two posts that look at Security for Expenses and, in particular the type of works for which security may be available and the forms in which the security may take. Under section 12 of the Party Wall etc. Act 1996 (“the 1996 Act”) the adjoining owner may serve a notice on the building owner requiring them to give security for expenses. The methods of giving security is not prescribed in the ...

[ Read More ]



VAT on a party wall surveyor’s fees

It has long been the practice of adjoining owner’s surveyor to make out their invoice to the building owner, because it is usually the building owner who will be paying those fees. The starting point is that a VAT registered supplier must send a VAT invoice to “the person to whom a supply is made”.  That invoice must include “the name and address of the person to whom the goods or services ...

[ Read More ]



Can surveyors make a party wall award without a notice?

It had long been thought that party wall surveyors could only make an award if the building owner had served a notice. This was the view expressed by the Court of Appeal in Louis v Sadiq. If no notice had been served then the adjoining owner would be left to apply for an injunction. However, that case was decided under the section 55 of the London Building Acts (Amendment) Act 1939, which provided:-

[ Read More ]



Demolishing boundary and party walls in conservation areas

June 02, 2014  |   Party Wall Blog, Planning   |    

Under section  2(2) of the Party Wall Act there is not stand-alone right to permanently demolish a party wall. The only right that is granted to the building owner is to demolish and rebuild. The same is not true of a boundary wall which sits on the land of one owner only.  At common law the owner of the wall may demolish their wall, subject only to planning restrictions. Demolishing a ...

[ Read More ]



Dillard v F&C Commercial Property Holdings Ltd – party wall agreements

 The High Court has recently found that a dispute resolution clause in an agreement between a building owner and an adjoining owner can replace the provisions of section 10 of the Party Wall Act. F&C owned 24-27 Great Pulteney Street in Soho, London. In October 2007 they entered into a deed with Dillard, who owned the adjoining property at 23 Great Pulteney Street. The purpose of the deed was to regulate their ...

[ Read More ]



Patel v Peters – Validity of section 10(7) requests

A couple of weeks ago the Court of Appeal handed down judgment in Patel v Peters [2014] EWCA Civ 335 in which the Court gave guidance on the correct interpretation of section 10(7) of the Party wall etc. Act 1996 (“the 1996 Act”). I acted for the successful appellants. Background Mr and Mrs Patel wanted to undertake works to their property that were subject ...

[ Read More ]



Serving documents under the party wall act

Many disputes between owners, and a large proportion of appeals against Party Wall Awards, are caused by notices and other documents either not being correctly addressed, or not being correctly served. Under section 15 of the Party Wall Act there are two sets of rules for serving notices and other documents. Sub-section 1 applies to all people, but sub-section 2 applies only to an “owner of premises”. It should be borne ...

[ Read More ]



Legal presumptions as to ownership of a party wall

In my last post I discussed the effect of an express declaration in a deed that a wall was a party wall. But what is the position where there is no such declaration? The Courts have considered this issue in two cases: Wiltshire v Sidford and Cubitt v Porter. Essentially, where the circumstances in which the wall was built are unclear the law presumes ...

[ Read More ]



Party wall declarations in deeds

Recently I had the pleasure of speaking to the Thames Valley branch of the Pyramus and Thisbie Club. During that meeting a question was raised about the meaning and effect of a clause in an old deed that declared a wall to be a party wall. A party wall declaration is a clause in a deed, usually in the first conveyance of the land, that states that one or more walls are ...

[ Read More ]



Histed v Prosperity Developments Limited – Party wall injunctions

A recent case in the High Court has underlined that Building Owners who commence works in breach of the Party Wall Act will be given very little  latitude when an application for an injunction is made. Background  In April 2013 Prosperity Developments Limited (“Prosperity”) was granted planning approval for the partial demolition of his house in London and the construction of a new three storey building. The proposed works included excavations ...

[ Read More ]



2013 Moot Appeal Judgment – Smith v Jones

It has been a long-held view that party wall surveyors can only make valid awards if the building owner has served the correct notice. This was the view expressed by the Court of Appeal in Louis v Sadiq in respect of the earlier London Building Acts, and certainly was the case under section 55(i) of the London Building Acts (Amendment) Act 1939 which expressly referred to a notice being served. If a ...

[ Read More ]