A Tale of Pitfalls...
A
TALE OF PITFALLS IN THE ADMINISTRATION OF THE PARTY WALL etc ACT
PROVISIONS IN RESPECT OF EXTENSIONS TO TERRACED
HOUSES
The Characters
Building Owner (BO) of 30 Acacia
Avenue.
Kevin. Age 35. Father graduated from the tools to owning a medium sized
Building Contractors and Development Company. Overindulged, Kevin, not
exactly a grafter like his father was after the quick buck. He had
bought the property with a loan from his long-suffering father who,
having failed to embrace him within the building company, was pleased to
see his son do something useful with his life.
Adjoining Owner (AO1) of 28 Acacia
Avenue
Marjorie. Age 82. Retired GP. Widowed at 76, her husband had been a
Director of a well-established Printing Company. A lively lady with all
her mental faculties but now physically frail . To be close to her
daughter downsized four years ago from five bedroomed house. Doctor son
working in Uganda.
Adjoining Owner (AO2) of 32 Acacia
Avenue
David and Stephanie. Age 45 and 42 respectively. David works from home.
His wife is Head of English at the local Academy. One boy on gap year.
The house and gardens are immaculate.
Building Owner’s Surveyor (BO1)
Jim. Age 23. Professional qualifications – none. Memorable quote.
“Money for old rope – anyone can do this”.
Building Owner’s Surveyor (BO2)
Christopher. Age 62. BA(Oxon). BSc. FRICS. MCIArb. Chartered Building
Surveyor. Sits on a number of professional and academic committees.
Respected Third Surveyor. Lives in a converted barn. Married to Julia
his third wife. Plays golf socially with high handicap.
Adjoining Owner’s Surveyor (AOS1) 28
Acacia Avenue
Richard. Age 51. BSc (Hons). FRICS. MCIArb. Chartered Building
Surveyor. Born and trained in London. Left large RICS Practice to
establish Building Surveyors and Town Planners in nearby historic town.
Pragmatic with a wealth of experience. Golf handicap of 9.Two daughters
and one son.
Adjoining Owners’ Surveyor (AOS2) 32
Acacia Avenue
Simon. Age 27. BSc. MRICS. MFPWS. Keen sportsman. Considered for GB
Rowing. Lives with his girlfriend in small well-appointed Flat close to
the town centre. Trained in London and moved back to town as one of two
Building Surveyors in Regional Firm of Estate Agents.
THE TALE
30 Acacia Avenue comprised a Victorian two storey slate-roofed terraced
house built on a gently sloping hill, located in an affluent town.
Single storey rear extensions were added to numbers 30 and 32 in the
1970s, the form of construction being a 225mm brick party wall
separating slated roofs pitching up to the boundary. An old rainwater
pipe serving the common upper level gutter discharged to a gully on the
land and to his side of the building owner’s extension.
Kevin, the new owner of 30 Acacia Avenue served notice on David and
Stephanie, the adjoining owners, at 32 Acacia Avenue, to expose and
raise the existing extension party wall and excavate for a two storey
extension, the foundations to which were to be three metres front to
back and three metres wide. He also served notice on Marjorie, the owner
of 28 Acacia Avenue, to enclose upon and extend the existing wall at the
boundary. Both adjoining owners had opposed the Planning Application and
were not on friendly terms with the building owner who had made little
or no effort to communicate with his neighbours, neither of whom who
were in the mood for co-operation. Both dissented from the notices and
each appointed a surveyor. Kevin was aghast at their ‘unreasonable’
behaviour and being faced with paying, in his words, ‘outrageous,
unaffordable, rip off fees’ immediately started stripping out the
interior of the property, ably assisted by a friend with a large white
van, emblazoned both sides, in garish red lettering reading – ‘BOND THE
BUILDER.’
Kevin made no attempt to appoint a surveyor and at weekends and
evenings continued stripping out the interior of his ‘home for life’.
The neighbours called round one evening to see ‘what was going on’ and
complain about the noise, only to be told in colourful language to get
off Kevin’s land and for good measure that he was not doing anything
wrong. On the advice of the two appointed surveyors the adjoining owners
engaged the services of a local solicitor with instructions to insist
that Kevin appoint a surveyor, failing which a surveyor would be
appointed for him under section 10 of the Act.
Kevin eventually succumbed to the threats and appointed as his surveyor
Jim, who was ‘big on the Web’ and of perhaps greater importance, cheap.
By this time the front windows of the house had been boarded up, a skip
resident in the road, the front garden wall demolished, the rear garden
fence uprooted and the common drain running across the rear of the
terrace twice blocked by cement and debris. The back garden resembled a
war zone. All in all not a pretty sight and ‘not the way things were
done in Acacia Avenue’.
Both adjoining owners were unhappy and threatening legal action.
Richard and Simon encountered a difficulty in the selection of the
third surveyor. Jim, the building owner’s surveyor, emailed the two
adjoining owners’ surveyors nominating a surveyor. Both Richard and
Simon declined the selection and without reference to one another each
replied with three names. After three weeks the Local Authority selected
one of the six surveyors on the joint list.
Work on site continued. The contents of the skip overflowed onto the
road, the front garden was piled high with broken kitchen units and
bathroom fittings etc. Rats were sighted.
Richard and Simon met on site and took schedules of condition of the
adjoining properties and endeavoured to reach common ground on the best
approach to protect their respective appointing owners’ interests.
Notices for the attic conversion had not been served. Jim had not
produced his appointment. Apart from Planning Drawings the surveyors had
nothing. The Planning Drawings showed a centrally positioned rear dormer
with cheeks formed some half metre distant from the party walls, a two
storey flat roofed extension on the side of No 32 and a single storey
pitched roof rear extension infilling the space between the two storey
addition and the flank wall of No 28. The position of Nos. 28 and 30
were indicated only by incorrectly drawn narrow single lines.
The drawings were neither detailed nor accurately showing the two rear
extensions projecting further than the neighbour’s extensions by 600mm
nor the position of the common drain etc.
Richard and Simon were trying to guess Kevin’s next steps. In reality
neither adjoining owner had funds to consider litigation and the
surveyors had begun to wonder if their fees would be paid.
Jim had gone to ground. He too had realised that his fixed fee was
wholly inadequate and his inexperience fatally exposed.
On completion of the soft strip the work was paused, the next stage to
be carried out by a specialist attic conversion company, ‘ROOF ROOMS FOR
YOU’, based forty miles away, in London.
Men in overalls appeared. These mystery men did not stay long enough to
be interrogated by Marjorie and David.
Two weeks later scaffold, projecting beyond the width of No. 30, was
erected up to roof level, sparking protest by the neighbours and their
surveyors, all to no avail. Kevin was not for talking. Jim was absent
and the scaffolding erectors communicated in grunts. Accepting the
potential security risk it was decided to let sleeping dogs lie. The
adjoining owners were advised to lock windows potentially accessible by
gymnasts off the scaffold.
With the scaffold erected and a team of builder’s operatives on site
and willing, whilst not on their mobiles, to engage with the locals it
became apparent that detailed drawings were being produced by a long
distanced draughtsman. Work started on the loft conversion, comprising,
raising the party wall with 32 (it having been found missing) inserting
three steel beams into the party walls and cutting away part of the
chimney stack internally. The common stack was found to be in poor
condition with loose cement fillets and pointing, cracked pots and
flaunching, all of which could have been clearly seen with the aid of
binoculars from the rear garden..
Within days it rained. Hard. Whilst the stack was under repair water
penetrated the roof and ran down the face of the adjoining owner’s
chimney breast, damaging the decorations and causing dampness in the
built-in wardrobes.
The beams had been installed without padstones nor spreaders. Neither
adjoining owners’ surveyor had seen calculations nor a method statement.
Within the roof space where the chimney stack had been cut away the
remaining masonry had been supported on two steel gallows brackets.
The adjoining owners were by now in daily contact via phone and email
with their appointed surveyors who in turn were sending ever
increasingly acerbic messages to Kevin and Jim. Tempers on all sides
were frayed. The builders claimed that they expected their customer to
have dealt with party wall matters in time for them to take possession
of the site and took refuge when under verbal attack in reciting the
ubiquitous “its nothing to do with me guv!”
After two months, to all intents and purposes, the structural work in
the attic was ‘complete’.
Eventually the detailed drawings were emailed to Kevin who distributed
them to Jim, Christopher and Richard at which time Jim, seeing the
writing on the wall, unappointed himself and demanded payment of his
fees incurred to date. Kevin refused payment.
Kevin realising that the process was ‘not going smoothly’ asked Richard
whether he would act for him as the agreed surveyor. The request was
declined and he suggested that the third surveyor might give useful
advice or perhaps make an award. The third surveyor who was known to
Richard, also declined and advised Kevin to appoint a replacement
surveyor, preferably a person of good standing in the party wall
surveying community.
Richard was, of course, concerned that the attic conversion had
proceeded without service of notice. He had warned Kevin of the risks
involved. In the event there was no evidence of damage having been
caused at roof level but there still remained issues to be settled, such
as repairs to the exposed areas of the party wall, the lack of beam
bearing plates, and the extent of additional loads imposed by the new
construction. There were also concerns over the missing fence and the
proposed location of the flank wall relative to Marjorie’s extension and
the aggravation of contacting the Water Company for them to unblock the
common drain.
With ill-tempered comments emanating from Simon and quiet exasperation
from Richard, Kevin eventually relented and appointed as his surveyor,
Christopher, who set about fact finding. He advised the third surveyor
and the two adjoining owners’ surveyors of his appointment and then
prepared an action plan.
First dealing with number 32 he decided that the attic works were
unlawfully executed. He photographed the completed works to the party
wall including the blockwork infill panels both sides of the existing
chimney stack, the rendered face of the cut away chimney stack and
externally the common chimney stack. Work on the two storey extension
had not started and on a document review it was found that the original
notice served under section 6 was not accompanied by the required
drawing showing the position and depth of the proposed foundation and
neither had a notice under section 3 been served to exercise section 2
rights. The long and the short of it was that Simon was justified in his
complaints.
It transpired that the ownership of the missing fence was in dispute.
On whose land did it stand? Until this question was answered the rights
of the parties under the Act could not be safely determined. As matters
stood the plans, drawn without sight of the property, showed the
existing wall enclosed upon and extended.
Christopher took his appointing owner to one side and gave him the bad
news. Unless Christopher could negotiate solutions with Richard and
Simon the work would have to stop. Kevin then disclosed that Jim was
threatening to sue for fees. Could he help?
Bearing in mind that Richard and Simon were understandably nervous of
any action taken by Kevin, Christopher convened separate meetings with
them to clear the decks. He started with Richard. Despite the
inadequacies of the drawings served with the originating notice would
Richard, on behalf of Marjorie, accept the defective section 6 notice as
valid, it being noted that several weeks had passed without rejection?
On condition that Marjorie’s interests were not prejudiced Richard
agreed to be pragmatic.
With the detailed plans in hand the two surveyors looked at the exposed
face of Marjorie’s extension flank wall which, by measurement more or
less aligned with the centre of the party wall. They agreed that the
wall was a boundary wall standing on the land of the adjoining owner and
that Kevin would have to build his own wall. The drawings were wrong and
would have to be corrected. It was also agreed that Christopher would
serve fresh notices based on their findings and under section 1(5) for
the 600mm metre length of wall extending beyond Marjorie’s extension
and, subject to a trial pit investigation, for underpinning.
There was no evidence to suggest that the fence had ever been attached
to the corner of Marjorie’s extension but the staining on the house rear
elevation indicated the possible position of a free-standing post. This
not being a matter for determination under the Act it was decided to see
if Kevin would replace the fence with the first panel being fixed to the
corner of his extension.
With agreement reached in principle over the work at ground level the
surveyor’s attention moved to the unauthorised insertion of beams into
the party wall and the condition of the exposed area of party wall above
the roof planes of No28. It was found that the load from the beams was
not distributed into the wall, thus further work was required to
temporarily support the beams and insert steel plates, thereafter making
good.
Lack of safe access limited the joint inspection of the exposed gable
wall, however by craning their necks around the fortuitously overhanging
scaffold it was possible to confirm that the four exposed brick courses
were largely devoid of mortar and that the cement fillet at the junction
of the roof to wall was beyond it’s useful life. It appeared that the
bricklayer had run out of cement. For the preservation of the wall the
brickwork at worst would have to be rebuilt or at best pointed. The
questions to be answered were 1. Was the work necessary now? 2. Was the
work defined ie was it local over one of roof slopes, 3. Who pays? It
was agreed that if the work were not carried out now it would not be
long before dampness, already visible in both properties, would get
worse and cause rot in the rafters, and that since the remedial work was
not for the sole benefit of the building owner the cost should be
apportioned between the owners. Neither Kevin nor Marjorie were happy
with the news but accepted the advice to share the costs thereby
avoiding a dispute under the Act.
Christopher emailed Kevin setting out the agreements reached, seeking
revisions to the drawings and action by the builder. In the interim
Christopher, using the information gleaned to date drafted and served
the requisite notices in respect of the beams, excavation and building
at the line of junction.
It took two weeks to arrange a meeting with Simon who was as usual
‘extremely’ busy. His initial reaction to the invitation had been
refusal on the grounds that he had spent an inordinate amount of time to
date and had his list of demands ignored by Kevin. He required payment
of his fees incurred to date of £2000 before proceeding any further.
Under threat of referral to the third surveyor he eventually agreed to
meet. It did not go well. The list of demands was tabled as the agenda.
Christopher knowing that the list was effectively a dispute suggested
that in order to reduce the scope or if possible reach agreement on as
may items as possible, they should work through it.
The first matter up for discussion was the unlawful work at roof level
ie the raising of the party wall, insertion of beams, the repairs to the
common stack, the resultant water ingress and the cutting away of the
internal stack. Simon’s initial attitude was that Kevin had ‘blown it’
and the remedy lay in litigation..
Whilst Christopher acknowledged that Kevin should not have carried out
work affecting the party wall without having first notified the
adjoining owners the salient question was - had damage been caused?
Christopher’s case was that, had notice been served to raise the party
wall it might very well have been built as now seen. He also accepted
that the cutting away of the stack flush with the new block wall was
unsatisfactory. An argument for retaining the block wall was that it was
sufficient for future use should David and Steph wish to convert their
attic. As is often the situation there were rumours on site to the
effect that plans had been prepared a couple of years ago but the
project had been postponed through lack of funds. More to the point
neither David nor Steph had complained, their immediate concern being
water penetration, which by the time of the meeting had stopped, the
stack having been pointed and cement fillets replaced at Kevin’s cost.
David and Steph had accepted an offer to redecorate the party wall and
ceilings when dry. To Simon’s chagrin Christopher pointed out that all
parts of the stack had been repaired at Kevin’s cost and was not work
generally notifiable under the Act (unless one was pedantic in respect
of the width of the party wall within the stack) The cutting away of the
stack in the roof void posed a challenge. Was the work notifiable and if
it were what decision would the surveyors have reached? The practical
difficulty was that only 102mm of brickwork had been left between the
neighbouring flue and the face of the party wall. It was known that
David and Steph used one of the flues. Simon, who expressed concern that
the work may have damaged the retained flues demanded reinstatement.
Richard disagreed saying that the work was not notifiable or if it were,
the remedy was for Kevin to line the flue and to complete the work by
the erection of a free standing sound insulating barrier spaced 50mm
from the party masonry wall.
The concern relating to the insertion of beams into the party wall was
at first thought odd since they were bearing onto the building owner’s
side of new blockwork and reduced stack however on closer examination
the builder admitted that the ends of two steels may have been built in
flush with the face of the party wall. Fortunately this transpired not
to be the case and it was just possible to provide the requisite fire
cover with concrete packed into the voids on the other side of the wall.
In an attempt to defuse the roof situation Christopher suggested that
the notifiable works be recorded in the Recitals to the award under
consideration for the rear extension works.
Following the lead of his appointing owners Simon produced a list of
objections to the two storey extension ;- The extension would block out
light to David and Steph’s Kitchen and Bedroom.
Proposals to temporarily waterproof the party wall had not been
provided.
Proposals to waterproof the exposed party wall at its base at the
abutment of the ground floor concrete floor slab had not been provided.
The additional loads to be imposed on the party wall could not be
supported on the existing foundation.
The bricks used in the raising of the party wall were too dark.
The proposed flat roof verge projected beyond the face of the raised
party wall.
The foul drain was to be built over and the inspection chamber removed.
The drawings did not show the means of rainwater disposal from the main
roof. A drawing showing the position and depth of the proposed
foundation had not accompanied the section 6 notice and therefore it was
invalid.
Confirmation that if the party wall had to be underpinned, notice would
be served. Consent would not be forthcoming if special foundations were
required.
The first floor window overlooking the gardens should be repositioned
to overlook the single storey extension.
The extension would be more acceptable if rendered.
Christopher had already given thought to some of these issues and
produced a draft award dealing with the obvious:-
Temporary protection would be heavy duty felt secured by timber battens
screw fixed to the party wall and at the base the width of the felt
would be laid horizontally and dressed over the retained floor slab to
which it would be mastic sealed and secured with a timber batten. The
felt would be dressed over the head of the wall and held down using the
reclaimed coping.
The Engineering implications of adding load to the party wall had not
been considered. There existed the possibility of agreement to a
rendered finish, raising a timber framed wall and spanning the roof and
first floor, front to back. In the short term Christopher agreed to
‘park’ the decision. In the end a simple calculation showed that the
load imposed by a timber framed first floor extension was less than the
pitched roof, thus avoiding underpinning the party wall. The design also
provided the adjoining owners with a light coloured wall.
Simon would not accept a 25 mm projecting verge beyond the party wall
face with the unfortunate result being an untidy fillet dressed over
with Sarnafil adhered to the wall face.
Since Simon had picked up on the defective 6 notice previously served
and was not prepared to advise acceptance by his appointing owners,
Christopher agreed to re-serve the notice.
Having addressed the substance of Simon’s comments Christopher
explained his reasons for rejecting the remainder and invited Simon to
refer any dispute to the third surveyor.
That left the question of Simon’s fees. An acceptable rate per hour was
negotiated but there was a difference of opinion over the number of
hours it was reasonable to take over the administration of a relatively
simple project. The matter was left until revised drawings had been
prepared, notices re-served and fourth draft of the award all but
agreed. Simon submitted time sheets for 23 hours including four site
visits during the soft strip element of the work. Bearing in mind that
the process spanned several weeks and extracting information had been
like pulling hen’s teeth Christopher rejected the figure claimed and
suggested a fee based on twelve hours. This provoked Simon’s ire and a
number of unwise remarks. Simon had already made it clear that he did
not trust Kevin and would not sign an award until he had been paid.
Christopher amended the format fee clause to read that the building
owner would pay 12 x the agreed rate plus such other sum as the third
surveyor would award on referral. The amended award was sent to Simon,
who refused to serve. The award was served by Christopher and the third
surveyor and not appealed. Simon was paid the sum awarded and set about
claiming the balance of his fee from David and Steph. History does not
relate the outcome.
After eighteen months Kevin’s first building project staggered to a
close and despite all of his protestations to the contrary sold the
house for, what he said was a profit.
David and Steph looked out onto a wall they had fought hard not to have
but at least the surface was light coloured. For the first time they
couldn’t hear their neighbour’s raucous music through the party wall and
when they carried out their attic conversion there was a party wall
where none had been before. They were particularly appreciative that
Kevin had agreed, as part of his wriggling off the hook, they did not
have to pay him half the cost of raising the party wall.
Marjorie was content that the party wall had been repaired without fuss
and that there was a new boundary fence in the back garden.
The new neighbours in No30, oblivious to the party wall issues lived
happily with their neighbours and all was well in Acacia Avenue until
Kevin bought another house in the road, again for his sole occupation.
AUTHOR’S NOTE:
The tale, as told, is a work of fiction but I have no doubt that party
wall surveyors will recognise the reality of the events described.
Hopefully not all would happen on the same project but you never know
.What dear reader would you have done in similar circumstances?
KEITH DOUGLAS