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Navigating the Party Wall Act: Retrospective Awards and Surveyors’ Role in Settling Disputes
Wednesday 8th January 2025
Carl O'Boyle BSc MRICS FCIOB MFPWS
If the notifiable works under the Party Wall etc. Act 1996 have been completed before the award has been served, the situation is procedurally irregular but not necessarily fatal to the process. Here’s a recommended course of action and the role of the surveyors in this scenario:
1. Assess the Breach
• Breach of Statutory Procedure: By carrying out notifiable works before an award is served, the building owner has breached the procedural requirements of the Act.
• Is the Work Lawful? Even though the works were undertaken without the award, the works themselves may still be lawful if they conform to the technical requirements of the Act.
• Nature of the Works: Assess if the works have caused any damage to the adjoining owner’s property or if they deviated from the scope of the notified works.
2. Can an Award Still Be Served?
• Yes, an Award Can Still Be Served: The surveyors retain jurisdiction under Section 10 of the Party Wall Act. The fact that works are complete does not extinguish the power of the surveyors to serve an award. This is sometimes referred to as a “retrospective award.”
• Purpose of the Award: The award can:
• Confirm the nature and extent of the work carried out.
• Document and resolve any damage caused to the adjoining owner’s property.
• Set out any ongoing obligations (e.g., making good, future maintenance, or compensation).
• Resolve any disputes over deviations from the notified works.
• Allocate costs, including surveyors’ fees.
3. Options Available to Surveyors
Serve a Retrospective Award:
• Document all the work that has been carried out.
• Address any non-compliance with the Act.
• Determine if compensation is due to the adjoining owner for damages or procedural breaches.
• Include provisions for remedial work (if necessary) and allocate liability for costs.
Update the Schedule of Condition (if Required):
• If the original Schedule of Condition was completed before the works, it can be used as a basis to identify post-work damage.
• If additional damage is found, the surveyors should supplement or update the Schedule of Condition.
Deal with Compensation:
• If the adjoining owner has suffered loss (e.g., damage or other disruption), the surveyors may determine that the building owner owes compensation.
• This can be addressed as part of the award.
Issue a Breach Notice (Optional):
• While the Act does not specifically mention “breach notices,” surveyors may issue correspondence to the building owner, making clear that they acted in breach of the statutory procedure.
• If the breach is significant (e.g., unsafe work), the adjoining owner could seek an injunction or damages via the courts, but this is typically seen as a last resort.
4. Adjoining Owner’s Rights
• Damages: The adjoining owner can claim for any damage caused by the works, regardless of the absence of an award.
• Injunction: In some extreme cases, an adjoining owner may apply to the court for an injunction to stop ongoing works. Since the works are now complete, this option may no longer be relevant.
• Cost Recovery: Surveyors can include a cost determination in the award, requiring the building owner to cover all surveyors’ fees.
5. Key Legal Cases & Precedent
• Gray v Elite Town Management Ltd (2016): Reinforces that awards can be issued even after works are completed.
• Louis v Sadiq (1996): Establishes that adjoining owners can still pursue claims for damages after works are completed.
• Section 10 of the Party Wall Act: Empowers surveyors to make an award at any stage, even after the works are complete.
Conclusion
While it is procedurally improper for a builder to complete notifiable works before an award is served, surveyors still have jurisdiction. The most practical course of action is to issue a retrospective award that documents the work, records the pre- and post-work conditions, resolves any disputes, and allocates costs. This approach allows both parties to settle their differences under the framework of the Act without escalating the matter to the courts.
