Party Wall Etc Act 1996 v Common Law23 Jan 2024 | Shilpa Mathuradas
Table of Contents
The case of Power & Kyson & Shah  EWICA Civ 239 brought in question the interrelationship between common law and the Party Wall Etc Act 1996.
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 surveyors, Mr Power and Mr Kyson appealed the decision to the High Court, stating that the purpose of the Act was to avoid 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 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.
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.
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.
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.
If you would like specialist advice relating to Party Wall issues, please contact our Property Litigation department or call the team on 02074858811. Alternatively, you can make an online enquiry.
Contact Shilpa today
For a free initial conversation call 020 7485 8811
Email us Send us an email and we’ll get back to you
Shilpa really helped us take charge of the situation and helped resolve this property dispute. I would not hesitate to recommend her or the team to anyone in a similar situation.
On first meeting Shilpa I was sure that she understood immediately my requirements, and was sympathetic both to my financial restraints and my emotional state. She achieved everything I asked of her and proved to be invaluable, professional and efficient
At every step Shilpa alleviated any concerns and stresses we had. Always fast to respond, always professional and super knowledgeable.
Shilpa has helped us through some key property litigation matters (residential and commercial) since 2014 and has delivered on every occasion. One particular issue had kept us in a state of stress and tension for almost a decade and after getting in touch with Shilpa she was able to help us bring the matter to a peaceful and successful conclusion.
I received a call from Shilpa Mathuradas a couple of hours after filling the enquiry form for a callback. She actively listened to my party wall concerns responding with gentle professionalism, answering my concerns, letting me know what is and is not possible and when best to bring in a solicitor. All this within 10 minutes. Excellent.
"They are an outstanding firm to work with. They are consistently impressive in their work."
Excellent in every aspect.
If I had another reason to have to seek legal advice again, I wouldn’t hesitate to use Shilpa, and would recommend her to anybody who needed legal advice.
Shilpa was professional, realistic, and unflappable. Shilpa managed to persuade a reluctant witness to come forward to support my case. She obviously knows her subject very well.
I always had full confidence in Shilpa keeping my best interests at heart. I often didn’t understand the legal language, and she would follow this up with a phone call and patiently explain.
More Property Litigation InsightsVIEW ALL
The Consumer Credit Act 1974 to the rescue?
Our clients issued a claim against their former accountant, friend and trusted confidante. The clients ran a restaurant from a...Read more
The Leasehold and Freehold Reform Bill and Service...
The Leasehold and Freehold Reform Bill was introduced to Parliament on 27 November 2023 with the aim of delivering on the government’...Read more
Know your Rights (of Way)
If you have a question or concern over a right of way on your property, it is important to seek...Read more
Party Wall Etc Act 1996 v Common Law
The case of Power & Kyson & Shah  EWICA Civ 239 brought in question the interrelationship between common law and the...Read more
The Building Safety Act 2022
This much awaited Act was introduced into Parliament on 5th May 2021 as a consequence of the Hackitt Report on Building...Read more
“Reasonableness” of Service Charges
It is well known that the relevant costs that a landlord incurs in the provision of services, repairs improvements, maintenance...Read more
Japanese Knotweed: Knot in my backyard again!
Many will have read the recent case in which a furniture designer pursued his seller successfully after he moved into...Read more
What are trusts of land? Property ownership is not always a straightforward legal issue, particularly where the parties are cohabitees...Read more
Right to Light Explained
Right to Light Law in the UK Property owners have a legal right to light as set out in the...Read more
Landlords and the Dangers of Rent-to-Rent
Rent-to-Rent refers to the practice of landlords letting a whole property to a tenant (usually a limited company), which is...Read more
Can I still claim adverse possession?
The principle of “adverse possession” commonly known as “squatters rights” is a principle which allows a person who does not...Read more
Buying a property where a Party Wall Award...
Buying a house with a party wall agreement Buying a property can already be a stressful process but finding out...Read more
The Risks Of Buying Properties Off Plan!
The Daily Mail reported that 300 families a week have to move into shoddy newly built homes. Not all will have...Read more
Costly clauses missed by lawyers in leasehold contracts
A mum has been left facing a bill of millions of pounds a year for the ground rent of her...Read more
Easements – Five Questions Answered
What is an easement? An easement is a right benefitting a piece of land (known as the dominant land) that...Read more
‘Glass in Hand’ Lecture – Should we be nervous...
Hampstead residents will be able to find out about their legal rights when trees damage or overhang their property, next...Read more
Government eviction reforms “risk increasing delays”
Government plans to end so-called ‘no fault’ evictions – and at the same time expand what amounts to a good reason...Read more
Rogue landlord ordered to pay tenant over £20,000 in...
A team of our housing solicitors were successful in a longstanding claim against a rogue landlord concerning a conduct of...Read more
Squatting-will the new law provide homeowners with increased...
On Saturday 1 September 2012 a new law came into force which makes squatting in a residential building an offence punishable by...Read more
Osbornes win 5 day trial in property dispute at...
In 1985 clients of Osbornes, Mr and Mrs Ali-Khan, purchased a house. For various reasons they were not able to obtain...Read more
Canary Wharf v EMA
EMA Decision: Brexit Does Not Frustrate Commercial Property Lease The largely anticipated decision in the case of Canary Wharf v...Read more
Basement developments- How to fight back
Basement developments are growing ever more popular, particularly in wealthy London boroughs, leaving homeowners fearful that neighbours’ excavation projects will...Read more
New Builds, Poor Standards!
This week’s Dispatches programme examined allegations of shoddy standards, poor customer care and excessive profits from one of Britain’...Read more
Tenant Fees Act 2019 – Landlords & Letting Agents be Warned
On 12 February 2019, the Tenant Fees Bill received Royal Assent and comes into effect on the 1 June 2019 The Act prevents landlord...Read more