Party Wall Act Matters-Schedule of Condition

The Party Wall Act 1996 (the Act )  is a legislative framework intended to prevent or resolve disputes about party walls, party structures boundary walls and excavations near neighbouring buildings.

Where the freehold or leasehold property owner intends to work to or near a party wall, the owner must serve a “party wall notice” on the neighbour.

The person who conducts the work is known as the building owner. The Act provides a mechanism by which a decision can be made as to when the work will be carried out,   what is the condition of the neighbour’s property before works take place and what happens in the case of damage to this Property caused by the works.

In the case of no consent, the Act provides a dispute resolution procedure where a 1/3 party survey can be appointed.

But what happens if no party wall notice has been served? Can the neighbours instruct their surveyor to determine the condition of their property before any work is undertaken?

It would seem that that would be a reasonable step to take by consent as the Act is designed to prevent disputes.

However, in a recent case, Power v Shah in 2023, the Court of Appeal stated that although the Act was designed to keep disputes out of court, in the absence of a party wall notice, the procedure under the Act could not be followed.

Without a party wall notice, the neighbour must apply for an injunction to stop the building owner from doing the works pending such a notice.

In the interim, the neighbour should obtain a schedule of conditions immediately. If no party wall notice has been served, then the owner has no remedy but has remedies under the common law, namely the right to bring claims in trespass, nuisance and negligence and the right to seek an Injunction.

This is a costly exercise and every effort should therefore be made to persuade the building owner to serve the notice to avoid costly proceeding. It may be possible to reclaim costs against the building owner if he has been properly warned to serve the notice but has gone on nevertheless to do the works and costs can then be claimed against the building owner if an injunction application was made.

If you require any further advice on this, please let us know.

We have many years of experience assisting landlords in this situation, and if you wish any further information or advice, contact the office.