Party Wall Etc Act 1996 v Common Law

The case of Power & Kyson & Shah [2023] EWICA Civ 239

The case of Power & Kyson & Shah [2023] EWICA Civ 239 brought in question the interrelationship between common law and the Party Wall Etc Act 1996.

Failure to serve notice and its implications

In this case, the building owner (Mr Shah) undertook works to his property without serving notice. He believed and maintained that the works did not require notice. After suffering damage, the adjoining owner appointed a party wall surveyor who then appointed a surveyor on behalf of Mr Shah under the default procedure of the Act. The two surveyors made an award for compensation for the adjoining owner’s damages and their fees, when their fees went unpaid, they applied to the Magistrates Court to enforce the award. Mr Shah challenged the application, claiming that no notice had been served. The Act did not apply and the award was void.

The High Court appeal

The surveyors, Mr Power and Mr Kyson appealed the decision to the High Court, stating that the purpose of the Act was to avoid property disputes and resolve what would otherwise be arduous and disproportionate claims in court. They argue that, as long as the matter in dispute between the neighbours was connected with any work to which the Act applied, then it could be resolved under the Act. They claimed that notice was not required before the Act could be invoked. The appeal was dismissed.

The Court of Appeal Ruling

The surveyors appealed further, and the Court of Appeal did not agree with the surveyor’s claim. The court held that the adjoining owner’s rights under the 1996 Act only arise after the building owner has served notice. Unless and until a notice is served, adjoining owners have no rights under the 1996 Act but may still be a claim in trespass or private nuisance. The decision also goes further and states that building owners also continue to enjoy all their rights at common law, including the right to undertake certain types of works and listed in the 1996 Act without following its procedures.

Consequences for Building Owners and Adjoining Owners

If a building owner does not serve notice, it is not only the dispute resolution procedure under the Act that is not available to them but all the other rights which may benefit a building owner such as the right of access. However the building owner will, of course, have open to them, all their common law rights. So if the matter involved a party structure which belongs wholly to the one party but is subject to a right in favour of the adjoining owner to use the structure for the purposes of division, under common law, the owner can do as they please with the structure provided they take reasonable care and do not infringe the adjoining owner’s right to use the structure as a division between two buildings.

Common Law Rights for Adjoining Owners

Often adjoining owners are faced with building owners proceeding with works without having served the notices under the Act and whilst it may be possible, if the adjoining owner acts in a timely manner to take action to force the building owner to serve the notice, it will often be the case that such action due to the high costs puts the adjoining owner off from taking such action. However, all is not lost as the adjoining owner would still retain their common law rights under nuisance to pursue any damage caused to their building. It is however, advisable for an adjoining owner to obtain an independent schedule of condition of their property as soon as possible (which would be normally undertaken if the Act had been invoked) as such will be vital for proving damages.

Final Thoughts on the Party Wall Etc. Act 1996

The Act contains important rights for parties which are not available if the building owner does not serve notice however all is not lost as the common law is still available to parties although it may prove a more costly and time consuming means for resolving a dispute.

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