Ongoing Misuse/abuse of the Party Wall etc. Act 1996
It is astonishing that some 28 years after the introduction of the Party Wall etc. Act 1996 (PWA) that there continues to be a clear lack of understanding of how the PWA applies and works for both the building owner and adjoining owner. Even more so when it is a member of the RICS and FPWS!!
These are some examples of the mis-use of the Act
https://apaproperty.com/blog/2023/03/10/court-of-appeal-ken-power-and-lee-kyson-v-raheel-shah-2023
In a current live party wall matter (hence no reference to the surveyors) a building owner (BO) served notice on Dr Antino’s adjoining owner www.apaproperty.com. Surveyors were appointed (including the third surveyor) then the building owners started works without an Award in place and damaged the party wall.
In such cases those of you that are familiar with the procedures under the Act require the adjoining owner (AO) to seek an undertaking that all notifiable works will cease until an Award is in place or apply for an injunction.
Solicitors were instructed and the request made. The building owners failed in the first instance to provide an undertaking other than to say they had currently stopped works, which is not the correct form of undertaking.
The threats of litigation were reiterated, and the BO gave the appropriate undertaking given. I as the AOS wrote to the BOS advising that I had undertaken an inspection and noted considerable damage to two apartments located on the adjoining owners (freeholder) side of the party wall. I requested access to the BO’s property to find out exactly what they had done to then move forward with regards to completing an Award and indeed understanding what works are required to rectify the damage to the party wall.
The BOS response was astonishing, “you are not allowed access”, well those of you that are familiar will know that s.8 (specially 8(4) and (5)) entitles a surveyor to have access to the property subject to giving 14 days’ notice.
When advised of this the BOS (an RICS member and a member of the FPWS) seemed oblivious to it. He then launched into a tirade of abuse, “you are not doing the Act properly, you should not go to the solicitors.” Well, he did not seem to understand that it was not me that went to the solicitors but my appointing owners.
These are examples that supports Dr Antino of www.apaproperty.com opinion.
In any event a formal request was made, the BO wanted to do a schedule of condition of the adjoining owners’ property which seems a bit like closing the stable door after the horse has bolted, but there you are.
I explained that we need to ascertain what works and damage has been done to the party wall, before addressing the damage to the AO’s property.
Having asked for access there was silence. Then a response was given that “you cannot have access to the building owner’s property” and that the building owner as noted on attached document to the email was making the position clear with regards to moving forwards or not as the case may be.
Attached to that email was a letter from a company stating all works are stopped on the property and we will not be doing any works until an award is in place.
There are several mistakes with this letter and indeed the BOS position.
Why? Firstly, the letter stating that they will not do any works until an award is in place is not from the BO. Secondly, the statement says that they will not do any works until is in place which confirms that there are notifiable works contrary to what the BOS stated.
Thirdly, even if a BO wants to suspend or stop permanently all notifiable works, that is ok but that does not invalidate the notices and the party wall surveyor’s statutory duty still remains to resolve with any matter arising out of or incidental to the works under s.10(12) and (13).
Therefore, the damage caused post the notices could be dealt with under the party wall legislation because the surveyors jurisdiction bit and that would be much more favourable to the parties than going to common law and furthermore, the surveyors’ fees would also be within their jurisdiction.
This gentleman being a member of the RICS and the FPWS clearly has no understanding of how the PWA works. After 28 years it is perhaps is endemic of the standards that these two organisations claim to promote themselves as having high standards of education and knowledge.
https://www.linkedin.com/pulse/misuseabuse-party-wall-etc-act-1996-philip-antino-jio8e/
The lyrics (below) from the famous recording by Stealers Wheel (1972) Stuck in the middle is very appropriate: -
Well I don't know why I came here tonight
I've got the feeling that something ain't right
I'm so scared in case I fall off my chair
And I'm wondering how I'll get down the stairs
Clowns to the left of me
Jokers to the right
Here I am stuck in the middle with you
Yes I'm stuck in the middle with you
And I'm wondering what it is I should do
It's so hard to keep this smile from my face
Losing control, yeah I'm all over the place
Clowns to the left of me
Jokers to the right
Here I am stuck in the middle with you
When you started off with nothing
And you're proud that you're a self-made man
And your friends they all come crawling
Slap you on the back and say
Please
Please
Trying to make some sense of it all
But I can see it makes no sense at all
Is it cool to go to sleep on the floor?
'Cause I don't think that I can take anymore
Clowns to the left of me
Jokers to the right
Here I am stuck in the middle with you
When you started off with nothing
And you're proud that you're a self-made man
And your friends they all come crawling
Slap you on the back and say
Please
Please
Well I don't know why I came here tonight
I've got the feeling that something ain't right
I'm so scared in case I fall off my chair
And I'm wondering how I'll get down the stairs
Clowns to the left of me
Jokers to the right
Here I am stuck in the middle with you
Yes I'm stuck in the middle with you
Stuck in the middle with you
Here I am, stuck in the middle with you
