|During my sandwich placement in 2016/17, party wall matters quickly became one of my favourite aspects of building surveying due to the logical approach and the methodical process followed. This means that whilst the proposed works may vary extensively; the procedure remains the same. I recently gave a presentation on party wall matters to Trident’s London City team during one of our mid-week Microsoft Teams calls. Whilst getting off to a bumpy start with a few technical hiccups (which I am sure most will probably be familiar with by now), the rest went pretty smoothly…|
As well as providing the team with valuable CPD hours to log, this also gave me a chance to work on my presentation skills, in preparation for my APC.
Though the team are well-versed in the application of the Party Wall etc. Act 1996, the presentation allowed me to provide answers to several FAQs as well as a brief summary of relevant case law that any party wall surveyor should be familiar with.
From the countless pieces of party wall case law that I could cover, this article focuses on three cases which relate to a building owner’s failure to serve the requisite notice under the Act.
Roadrunner Properties Limited v Dean 
Roadrunner Properties Limited v Dean is a fundamental case relating to circumstances in which damage is allegedly caused to an adjoining owner’s property by works which are notifiable under the Act but for which the requisite notice was not served on the adjoining owner(s).
Unfortunately, the Party Wall Act does not give detail on action that an adjoining owner is permitted to take if a building owner commences notifiable works without serving notice. They may apply to the county court for an injunction to cease the works, but this can be time consuming and expensive. In any case, it is possible that the building owner’s works may have finished by the time an injunction is granted and potentially have caused damage to their property.
In Roadrunner v Dean, it was found that where a building owner has carried out notifiable works without serving notice as required, they should not benefit from their failure to comply with the Act so the burden should be on them to disprove that any damage caused to the adjoining owner’s property was caused by their works. This is contrary to conventional cases where the burden is on the claimant to prove beyond reasonable doubt that the defendant is at fault.
Yamin v Edwards  and Shah v Power & Kyson 
Another matter of dispute which is being settled in case law is that of ‘no notice, no award’, the argument that if a building owner does not serve notice for their notifiable works, the adjoining owner has no right to appoint a surveyor. Therefore, any award which is subsequently published is invalid.
In the case of Yamin v Edwards, the Yamins neglected to serve notice on the Edwards prior to commencing the construction of an extension. Feeling concerned, the Edwards appointed a party wall surveyor who in turn appointed a surveyor on behalf of the Yamins under Section 10(4) because they failed to do so themselves.
The two surveyors published an Award which the Yamins did not appeal within the allotted 2 weeks. However, they did commence proceedings in the Country Court, claiming the award was invalid. The Judge dismissed the claim in this case finding that the adjoining owner should still benefit from the rights granted to them by the Act, even if notice is not served. Consequently, the surveyors’ appointments and therefore, the award were held to be valid, despite notice not being served by the building owner.
In an almost identical case, Shah v Power & Kyson, the same judge that presided over Yamin v Edwards, HHJ Parfitt, found that under the same circumstances, the surveyors did not have the authority to publish an award, making it invalid.
Unsurprisingly, the decision on Shah v Power & Kyson is in the process of being appealed. The outcome of this will hopefully provide more clarity on whether an adjoining owner can appoint a surveyor, without having been served notice and thus whether an award produced under these circumstances can be valid.
These cases highlight the importance of ensuring that party wall matters are properly considered by private owners and businesses alike when planning to carry out potentially notifiable works to their properties.
If a building owner fails to serve the necessary valid notices on all adjoining owners, it can potentially lead to expensive and time-consuming legal disputes, delays to the project and at the very least, damaged relationships with the community.
Building owners could also find themselves being ordered by the courts to pay for remedial works for damage to an adjoining owner’s property if they cannot prove it wasn’t them that caused it. Furthermore, if a case becomes high-profile, there is also the possibility of reputational damage.
If you are unsure of whether works that you are planning may be notifiable or if you require the services of a party wall surveyor, please drop me an email at firstname.lastname@example.org or call me on 020 7280 8198 and I would be happy to discuss how we can assist you.