Requirement to Serve Notices
The relevant Sections of the Act are 1 (2) (3) (4) (5), 3, 4 (1), 5, 6 (5) (7), 8 (3) (6), 11 (7) (10), 12 (1) (2), 13 (1) (2)
Form
All notices required to be given under the Act must be in writing, but there is no requirement under the Act for a particular form to be used. However the wording of a notice must be clear and unambiguous, setting out all the information required by the relevant clauses of the Act.
With care in drafting it is possible to serve Notices required by different Sections of the Act in one Form.
Notices must be properly addressed to the Adjoining Owner/s. Reasonable attempts should be made to discover the names of the owner/s, using the Land Registry website or Building Owner’s solicitors and in the event of the information being unavailable notices should be addressed to “The Owner”. This can be clarified further by specifying leasehold or freehold owner/owners.
Notices must include the names and addresses of the Building and Adjoining Owners and identify the property/premises of the notifiable works.
In the case of Line of Junction Notices the following must be stated:-
- The intention to build and a description of the intended wall – length, height, thickness and materials.
- The nature and particulars of the proposed work including, in cases where the Building Owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby
- The earliest date on or after which the two month statutory period the proposed work will begin
- The earliest date on or after one month upon which excavation is to begin
- An indication of the proposals
- An intention or not to underpin or otherwise strengthen or safeguard the foundations or structure of the Adjoining Owner.
- Plans and Sections showing the site and depth of any excavation proposed by the Building Owner and if a building or structure is to be erected, its site.
Notices for access under Section 8 can only relate to notifiable works and do not extend to access provision for carrying out non-notifiable parts of a project
Under Section 15 of the Act there are three primary methods of service including:-
- Delivery to the recipient in person
- Service by post to the recipient’s usual or last known residence or place of business in the UK.
- In the case of a Body Corporate delivery to the Secretary or Clerk of the Body Corporate at its registered or principal office or service by post to the Secretary or Clerk of that Body Corporate at that office.
- Personal service must be to the recipient and unless requested to do so not to an agent.
- Service by post implies that all normal procedures are followed ie properly addressed, stamped and posted to the proper address of the recipient.
- An undelivered notice is not properly served.
- Delivery of post is effected in the normal timescales of posting ie if first class, where a letter is posted in time for the last collection on a weekday it is deemed delivered the following day
- The relevant address for service is the usual or last known residence or place of business in the United Kingdom, not the Republic of Ireland and the Channel Islands.
- The service on a Body Corporate service must be by registered post or recorded delivery
- Section 15 (2) permits service of a notice on the owner and it is good practice to address a notice both to the owner and also by name. Notices may be properly served by fixing them to a conspicuous part of the Adjoining Owner’s premises (except on an occupier).
Time Periods
If recipient acts on Notice, it is received.
| Line of Junction Notice | 1 month |
| Party Structure Notice | 2 months |
| Consent to Counter Notice | 14 days |
| Three/Six metre Notice | 1 month |
| Notice Requiring Security before work starts and in the case of an Adjoining Owner within | 1 month of notice or determination by Surveyor |
| Recovery of expenses from Adjoining Owner | 2 months from completion of the work |
| Notice of Entry | 14 days before entry or in an emergency as soon as possible |
| Consent to a Party Fence Wall | No time limit or 14 days beginning with the date on which the notice under Section 1 (2) is served |
| Consent to a Party Structure Notice | 14 days beginning with the date on which the Party Structure Notice is served. |
| To consent to a Party Structure Notice subject to requiring works as specified in Section 4 (1) | 1 month |
| Consent to Notice by Building Owner under Section 6 (5) | 14 days beginning with service of notice under Section 6 (5) |
| Recovery of additional costs in relation to special foundations | No time specified but Building Owner must pay account within 2 months |
| To require security for expenses before work begins. To object to Building Owner’s account | 1 month after service of the account. |
2. SCHEDULES OF CONDITION
Introduction
The words “Schedule of Condition” do not appear in the Act, however, it is custom and practice, supported by the Judge’s reasoning in “Road Runner Properties Ltd –v- Dean and Another (2003) EWCA – CIV1816” that Schedules of Condition should normally form part of the dispute resolution process.
Purpose
A Schedule of Condition is a written document accurately recording the state of the building at a given time.It is often the case that the written document is supported with photographs.
Normally a Schedule of Condition is prepared with a view to setting a standard prior to the execution of work against which the result of possible damage can be measured.
Method
There is no set way to prepare a Schedule, however, the four-column approach of Location, Element, Construction and Condition is commonly found.To assist future reference numbering of items or lines or pages or all three is recommended.
Care should be taken to identify areas of the property accurately bearing in mind that in such buildings as offices the use of names on doors may be unhelpful after a change of personnel.
Descriptions must be accurate, for example, it is useless to record that "on the front wall there is a crack".The crack should be recorded by reference to its starting and finishing position, consistent or tapering width and whether there is any displacement of the surfaces on either side.The Surveyor may, outside the scope of the Schedule, recommend that tell-tales are placed against sensitive cracks.
Where surfaces are extensively cracked a preliminary note to the Schedule "all cracks less than 1mm wide unless specifically noted" may serve to shorten the Schedule.
A general note describing decorative condition is useful, particularly where it is clear that recent decorations are masking cracks etc.
Plastered and rendered surfaces should be checked for hollowness ie loss of key, and the results recorded.
Depending on the circumstances a Schedule of Condition may include the result of surveys on services, particularly drains.
Preparation
The Surveyors should agree the method of taking and checking the Schedule. Many Surveyors prefer to prepare the Schedule alone then forward it on to the other Surveyor. It does not matter whether the Schedule is prepared by the Building Owner’s Surveyor or the Adjoining Owner’s Surveyor.
The temptation to pass the preparation of Schedules onto junior members of staff should be resisted, the nominated Surveyor having a duty to view every project.
A Surveyor is not expected to diagnose faults in a building, only to record their and extent. The Surveyor should however pass on any relevant comments that may affect the building process to the Building Owner’s professional team. In this regard the presence of any windows in the Adjoining Owner’s premises should be reported to the Building Owner’s professional team thereby minimising the risk of the designers not taking into account any Rights to Light. Similarly the presence of drains, not immediately obvious to the Building Owner’s team should be reported.
Schedules of Condition should be taken just before work starts.
The presence of the Surveyor on the Adjoining Owner’s property is frequently useful to build trust and rapport prior to the execution of works on the Building Owner’s land.
Scope
The extent of a property covered by a Schedule of Condition must be a matter of judgement on the part of the Surveyors. The temptation to prepare an overly long Schedule should be avoided and in particular Schedules should be strictly relevant to the proposed works.
On large projects Surveyors should consider the use of technology to monitor vibration etc.
Procedure
The existence of a Schedule of Condition should be recorded in the Award.
The date of preparation of the Schedule should be recorded.
The Schedule should be signed by the Surveyors.
It is important to remember that a Schedule of Condition records facts not opinions.
A Schedule of Condition is not proof of condition or of damage, only evidence.
General
Commonsense should be used in the interpretation of the Schedule at the expiration of the Building Owner’s works. It is frequently the case that cracks appear in the Adjoining Owner’s recently painted plastered walls and these may not be attributable to the building works, merely shrinkage or the re-opening of cracks that move climactically. It is for the Adjoining Owner to prove that a defect is a consequence of the Building Owner’s works.
3. APPOINTMENTS
The Act requires Surveyors to be appointed and “appointment” is defined as “to determine authoratively” and “the action of nominating to, or placing in, an office.”
Although there is no legal requirement for an appointed Surveyor to be qualified or have any knowledge of building construction a Surveyor not having the necessary skills, experience and knowledge would be wise to decline an appointment.
An appointed Surveyor must not be a party to the dispute.
The essential difference between “appoint” and “instruct” is degree of control. A client “instructs” a professional adviser to take a course of action, normally for their benefit whereas an owner “appoints” a Surveyor to fairly and reasonably administer the provisions of the Act. Surveyors instructed by a Building Owner in the design and construction of buildings should, before accepting an appointment to act on behalf of the Building Owner, carefully consider whether a conflict of interest may arise.
A Company cannot be appointed.
Appointments must be in writing and cannot be rescinded.
A surveyor appointed by an agent of a party must ensure that the agent is duly authorised to make the appointment.
Appointed surveyors may un-appoint themselves
An appointment may be made prior to the service of notice (see Manu v Euroview Estates Ltd).
Section 10 (4) - Where a party either refuses or neglects for 10 days to appoint a Surveyor the other party may make the appointment.
Agreed Surveyor – normally for works of an uncomplicated matter both parties may concur in the appointment of one Surveyor, thereby minimising fees payable.
RICS acknowledgement form to the notice is a statement of intent not an appointment. The appointment should authorise a Surveyor to sign, issue, serve, receive and respond to notices, to resolve disputes arising or deemed and to make all requests and appointments under the Act on behalf of their appointing owner.
To avoid an Award being invalid Surveyors must be properly appointed and it is good practice for the Surveyors to exchange and check each other’s authority.
One of the first acts of appointed Surveyors is to select the Third Surveyor, who must have the necessary skills and experience. Normally the Third Surveyor will be appointed to resolve an actual dispute. Once selected, the name and contact details of the Third Surveyor should be notified to the parties.
Appointed Surveyors must be diligent and impartial in the execution of their duties in the administration of the Acts’ provisions.
Where an Agreed Surveyor fails to act or neglects to act after ten days notice then their appointment is ended and the parties will have to re-appoint.
4. FEES
Must be proportionate and reasonable
Rates vary nationwide and surveyors accepting appointments outside their area should not seek to impose higher rates than prevailing locally, nor should Surveyors expect to charge for time and travelling long distances to the subject property.
Apart from a Third Surveyor Surveyors generally are not entitled to withhold Awards until their fee has been paid
Parties must not be charged Partners’ Rates for work ordinarily carried out by assistants.
Where demonstrably necessary, surveyors may engage the service of specialists, such as Engineers and Lawyers, whose fees will be included within the Award, either as part of the appointed Surveyor’s fees or stated separately.
In the ordinary course of events the Building Owner will be responsible for paying fees but when there is a shared responsibility for the work; fees will be apportioned between the parties.
It is good practice for the Building Owner’s appointed Surveyor to agree his fee or basis of charging, prior to accepting the appointment. To minimise disputes the Adjoining Owner’s appointed Surveyor should, if possible, agree at an early stage their fee or basis for their fee with the Building Owner’s appointed Surveyor.
Fees to be charged to the paying party must be transparent and have been incurred strictly in connection with administering the provisions of the Act, which would normally exclude costs of time spent in providing continual support and care to overwrought parties.
Where provision is made within an Award for the inclusion of fees for further inspections and they are not carried out, a suitable proportion of the total fee should be reimbursed to the paying party.
4. THE PARTY WALL etc ACT AND INSURANCE
Insurance is relevant to the functioning of the Act
1) under Clause 12 (Security) and where
2) damage has been caused to the Adjoining Owner’s property and is the subject of an insurance claim and
3) an Insurance Company is paying for the work eg underpinning.
Section 12
Before seeking security an Adjoining Owner’s Surveyor should consider the scope of insurance cover relative to the Building Owner’s desire to carry out work.
If the work is funded by Insurers it will not necessarily be the case that they will be responsible for meeting the cost of any damage caused to the Adjoining Owner’s property during the course of the funded work.
Once the limit of a Building Owner’s policy has been reached there is no further liability on the Insurance Company to pay. The Surveyor should therefore agree the sum insured and determine the split between the cost of the building work and the residue for any accidental damage to the Adjoining Owner’s property.
The Surveyor should, at an early stage of negotiation with the Loss Adjuster, seek agreement that the Insurance Company will pay for any damage to the Adjoining Owner’s building, which falls within the scope of the Act.
The Building Owner’s liability insurance will not necessarily cover damage to other buildings resulting from the work being carried out by him in which case, where damage is caused to an Adjoining Owner’s property during works to the Building Owner’s building, then the cost of repairs may have to be funded by other means, for example, under the provisions of the Contractor’s insurance policies.
It may be the case that Contractor’s liability insurances do not cover the cost of repairs to a party wall since that might be considered third party property. It should also be remembered that Contractor’s liability policies have exclusions including the policy excess, damage caused by incorrect design, use of excessive heat etc.
Where a Contractor has not been negligent neither the Building Owner’s nor the Contractor’s liability policies cover repairs. Surveyors should therefore consider advising the Building Owner to effect an insurance policy covering collapse, subsidence, vibration, removal of support, lowering of the water table etc (see JCT forms).
Building Work Funded by Insurers
In small work it is common for the Insurers to take total control of remedial work and the service of notices and the appointment of a Surveyor under the Ac.
Conflicts can arise where work is funded by Insurers about
1) the roles to be played and the duties of a Party Wall Surveyor and
2) any difference between sums payable to the Adjoining Owner or occupier under an Award and the amount that the Insurance Company are willing to pay the Building Owner.
It is suggested that in order to avoid conflicts of interest a Surveyor should not accept an appointment as an Agreed Surveyor where involved in dealing with the funding of a project under an insurance policy. In particular it is difficult to be impartial when a Building Owner is effectively the insurer. It would be unwise to be in a position where an Award is made against a Building Owner which causes an argument between the Building Owner and the Insurer (represented by a Loss Adjuster who then has to resolve the dispute caused by the Agreed Surveyor.)
It is further suggested that where a Building Owner is effectively disenfranchised by their Insurance Company then the Surveyor should seek an indemnity for the policyholder from the Insurer to meet any obligations on the Building Owner under the provision of the Party Wall etc Act regardless of any fault.
It is good practice for a Party Wall Surveyor to set out the provisions of the Act to the Building Owner, copied to the Loss Adjuster, so that the duties and liabilities of the parties are clearly understood. The parties must be made aware that a Party Wall Surveyor acts independently and may therefore be making decisions that are unpopular, often without their approval or even consultation.
Under the provisions of Section 7 (1) a Building Owner must neither commit nor cause unnecessary inconvenience to an Adjoining Owner or Adjoining Occupier. If that were to happen or any loss or damage caused by work executed in pursuance of the Act, the Surveyors are obliged to reach agreement on the level of any compensation to be paid.
Building insurance policies normally relate to the cost of building work and thus may exclude the provisions found in Section 7 of the Act. This does not absolve a Party Wall Surveyor from making an appropriate Award and in respect of insurance payments awarded under this Section they are in reality part of the works, without which the work could not be carried out. A point to watch is that there could be a shortfall between sums awarded and the amount claimable by the Building Owner.
Despite being entirely independent of Insurers it is important that Surveyors should maintain close contract with the Loss Adjuster when making an Award, however, under no circumstances should Surveyors refer drafts of their Award to a Loss Adjuster for approval before service. This is a clear indication of bias and undue influence.
Where a party wall has to be underpinned due to a defect eg subsidence, a Building Owner can recover half the cost of the work from the Adjoining Owner under Section 11 (14). In these circumstances it is likely that the Adjoining Owner will make a claim on their insurance policy in which case disputes could arise over whether the remedial work is really necessary or the extent of it. Serious difficulties can arise where the Adjoining Owner is uninsured.
Adjoining Owner’s Property Damaged
Where damage is occasioned to an Adjoining Owner’s premises during work on the Building Owner’s property and an Award is in place, the Surveyors have a duty to determine any dispute arising out of a claim and to award compensation under Clause 7 (2). Any pressure brought to bear upon the Surveyors by their appointing owners or their Insurance Company to prevent the service of an Award should be strongly resisted. However, Surveyors can legitimately take advice from the Loss Adjuster on matters such as what constitutes legal liability and on the appropriate way to calculate compensation.