Blogs
What Happens When No Surveyors Are Appointed Before Notifiable Works: A Guide to Retrospective Resolutions Under the Party Wall Act
Wednesday 8th January 2025
Carl O'Boyle BSc MRICS FCIOB MFPWS
If surveyors have not yet been appointed and the notifiable works under the Party Wall etc. Act 1996 have already been completed; the situation becomes more procedurally complicated. However, the Act still provides a way forward. Here’s a breakdown of what happens and how the process should be handled:
1. Legal Status of the Works:
• Breach of Procedure:
By carrying out notifiable works without first serving notice or without appointing surveyors to resolve disputes, the building owner has breached their obligations under the Party Wall Act. However, this procedural breach does not make the works unlawful.
• Are the Works Lawful?
If the works comply with the technical requirements of the Act (e.g., not causing unnecessary inconvenience to the adjoining owner, properly supporting the adjoining structure, and following the principles of the Act), then the works may still be considered “lawful” in terms of construction law. However, the failure to follow the procedure opens the building owner to liability for damages and costs.
2. Can Surveyors Still Be Appointed?
Yes, surveyors can still be appointed retrospectively under Section 10 of the Party Wall Act, even after the works have been completed.
• Adjoining Owner’s Right to Appoint:
If no notice was served and works have been completed, the adjoining owner can request that the building owner retrospectively serve a notice. If the building owner refuses or ignores this request, the adjoining owner can unilaterally appoint a surveyor.
• Building Owner’s Obligation to Appoint:
If the adjoining owner raises a dispute, the building owner must appoint a surveyor. If the building owner fails to do so, the adjoining owner can appoint a surveyor on behalf of the building owner.
• Joint Appointment of a Single Agreed Surveyor:
The parties can also agree to appoint a single surveyor to resolve the matter.
3. How Should the Process Be Handled?
• Initiate Surveyor Appointments:
If no surveyors have been appointed, the adjoining owner should send a formal request (in writing) for the appointment of surveyors or for the building owner to provide a retrospective party wall notice.
• Dispute Arises Automatically:
If the adjoining owner claims damage, inconvenience, or breach of procedure, a dispute is automatically deemed to exist under the Act. This triggers the formal dispute resolution process under Section 10, requiring the appointment of surveyors.
• Appointment of Surveyors:
• If both parties agree, they can appoint a single agreed surveyor.
• If no agreement is reached, each party appoints their own surveyor.
• If the building owner refuses to appoint a surveyor, the adjoining owner may appoint one on the building owner’s behalf.
4. Role of the Surveyors After Appointment:
Once appointed, the surveyors have jurisdiction to:
• Serve a Retrospective Award:
• Document the nature, extent, and quality of the works that have been carried out.
• Assess any damage caused to the adjoining owner’s property.
• Confirm whether any deviations from the Act’s technical requirements occurred.
• Include any obligations on the building owner to “make good” or compensate the adjoining owner.
• Determine liability for surveyors’ fees and costs.
• Schedule of Condition:
• If a Schedule of Condition was not prepared before the works, the surveyors can still assess the current condition and compare it to reasonable expectations of pre-works conditions (sometimes through evidence like historical photos).
• If the surveyors cannot identify the exact pre-works condition, they will often rely on “best evidence” and allocate risk accordingly.
• Compensation for the Adjoining Owner:
• If the adjoining owner can prove that they suffered damage or inconvenience, the surveyors can award financial compensation.
• Dealing with Costs and Fees:
• The surveyors can allocate responsibility for professional fees, often making the building owner liable for both parties’ surveyor fees due to their breach of the Act.
5. Rights and Remedies for the Adjoining Owner:
• Damages for Property Damage:
The adjoining owner can claim compensation for damage caused by the works, regardless of whether a party wall award is made. This right is enshrined in common law as well as in the Party Wall Act.
• Court Injunction (if works are ongoing):
If works are still ongoing (not yet complete), the adjoining owner can apply to the court for an injunction to stop them. However, if the works are complete, an injunction is no longer applicable.
• Compensation for Inconvenience:
If the works caused disruption, disturbance, or other inconvenience, the adjoining owner may claim compensation. This can be included in the retrospective award.
• Cost Recovery:
The adjoining owner is entitled to have their surveyor’s fees paid by the building owner. This is enforceable through the Party Wall Act and, if necessary, through the courts.
6. Potential Risks for the Building Owner:
• Unfavourable Award:
Since the building owner breached the procedural requirements, the surveyors may be less inclined to act in their favour. The building owner may be ordered to pay damages, rectify defects, and cover surveyors’ fees.
• Legal Action (County Court):
The adjoining owner may apply to the County Court for an order to enforce an award or claim damages.
• Uncertainty Over Costs:
The building owner may face higher costs if surveyors’ fees and compensation are awarded to the adjoining owner.
7. Summary:
Scenario Action Required:
No Surveyors Appointed: Either party can trigger the appointment of surveyors. Adjoining owner can request it if a dispute arises.
Building Owner Refuses: Adjoining owner can appoint surveyor on behalf of the building owner.
Surveyors Appointed: Surveyors can issue a retrospective award to address non-compliance, damage, and costs.
Dispute over Condition: Surveyors will assess post-works condition to identify damage and allocate liability.
Surveyors’ Fees: Likely paid by the building owner due to their breach of procedure.
Owner’s Right to Object: If dissatisfied with the award, either party can appeal it in the County Court under Section 10(17).
Key Takeaways:
1. Surveyors Can Be Appointed Retrospectively: Even if the works are complete, surveyors can still be appointed under the Act.
2. No Need for Building Owner’s Consent: The adjoining owner can unilaterally appoint a surveyor if the building owner fails to act.
3. Retrospective Awards are Valid: Surveyors can issue retrospective awards under Section 10 to document the works, resolve disputes, and allocate costs.
4. Liability Falls on the Building Owner: If the building owner did not follow the Act, they are likely to be held responsible for surveyors’ fees and any compensation.
5. Adjoining Owner’s Rights Are Protected: The adjoining owner can still claim damages or seek an injunction if works are ongoing.
This approach allows both parties to resolve matters under the Party Wall etc. Act 1996 rather than resorting to expensive court proceedings.
