The existence of section 12 of the Party Wall etc. Act 1996 (PWA) is often overlooked and yet its importance should not be. It confers on both a building owner and an adjoining owner the right, in certain circumstances, to require the other to give security for the expenses that may be incurred when works are carried out on their land or to their property.
Kaye v Lawrence
In Kaye v Lawrence, the High Court considered the meaning of section 12. It arrived at a common sense interpretation, but first the facts.
Briefly, a dispute under section 10 of the PWA arose after the building owner served a party wall notice under section 6. The surveyor appointed to deal with the dispute refused to include in his party wall award a requirement that the building owner take out an insurance policy in respect of the potential damage to the adjoining owner’s property. He said the issue of security could only arise if the building owner was carrying out works on the adjoining owners property, which he wasn’t. The adjoining owner disagreed, and the matter ultimately ended up before the court.
Ramsey J in the TCC arrived at a common sense interpretation:
- A building owner who intends to carry out works that the PWA relates to can be reasonably requested to give security to an adjoining owner in respect of inconvenience, losses and damage the adjoining owner may suffer.
- That the works are to be carried out exclusively on the building owner’s land does not mean adjoining owners will not suffer loss and inconvenience.
- That the works are carried out under section 6(1) and 6(2) (which govern excavation within 3 or 6 metres of the adjoining owners land) rather than under any other section of the PWA, should be no bar to seeking security for those losses.
A reminder about section 12
Kaye v Lawrence is a useful reminder of the very existence of section 12, which many adjoining owners and, to a lesser extent, building owners, fail to take advantage of.
In my experience, the tail-end of many disputes under the PWA relate to:
- The amount of compensation that the party wall surveyor has awarded to the adjoining owner under section 7(2) in respect of unnecessary inconvenience, loss and damage.
- The adjoining owner’s claim for damages arising out of the building owner’s failure to comply with the award or the PWA itself.
If the adjoining owner has exercised his rights under section 12 and security is already in place to cover part or all of the compensation and damages sought, his negotiating position when trying to reach a compromise will be much stronger than would otherwise have been the case. Once the section 10 dispute is resolved or the party wall surveyor has made his determination, it is simply a question of releasing part or all of the security to the party entitled to receive it (which will usually, but not always, be the adjoining owner).
This is a serious advantage for anyone trying to recover compensation that has been awarded to them under section 7. It can be contrasted with what happens if the paying party refuses to pay compensation, where it is very likely that the receiving party will have to bring a claim in the County Court for breach of statutory duty before being able to enforce the party wall surveyor’s award.
A really great informative article.
My neighbour appointed a party wall surveyor, as did I under the Party Wall Act. Before the award he sold on the property and refused to pay the surveyors fees to date.
These amounted to £5,300 of which I had paid £1,680 on account to my surveyor. After some pressure the owner agreed to pay half of the fees.
My surveyor agreed to this, I did not, but refused to repay me any money, despite having assured me that my money would be safely returned when I paid initially.
I am consequently £1,680 out of pocket, through no fault of my own. It all seems grossly unfair as I am an innocent bystander in this award/debacle and only want to safeguard my important listed property.
My surveyor is pressing on with the new owners saying that we have a contract.
I would rather appoint a new surveyor after his poor financial management/invoicing.
I am not very happy and wish to make sure that I have additional security in case I am required to pay more money up front. How do I stand please. Could I have asked for a section 12 security initially?
I’m afraid we cannot give advice on this blog, whether that is in relation to issues that arise under the PWA 1996 or to surveyors appointed by the parties to deal with a dispute arising under the Act.
Hi,
My neighbour the building owner has started building her extension has already laid the foundations and built the wall up to ground level, she has not issued the required notices under the TPA. She and her builder agreed to repair any damage done but have we have disagreed on how they will repair the damage to my property.
I have asked they stop the works until the damage to my property is resolved and they have advised they will wait for the building contract manager to come back and make a decision regarding this.
They started works few weeks after receiving planning permission and did not serve any notices, the building owner advised me 3 weeks before the works started she would be begin the works.
What are my rights as an adjoining neighbour and is there an option of us both agreeing to appoint an third party wall surveyor to draw a agreement or award for the building owner to pay for existing damage and any future damage to my property?
Hi Hussain,
I know this is somewhat outdated however I was recently subject to a similar scenario. Neighbours began construction (a rental property of mine), and excavated and cut into a out building of mine.
I was given conflicting advise (legal & surveyors). In the end I progressed with a surveyor who specialised in party wall. He made contact with neighbours and we all met on site with their contractor. The surveyor managed to get the work put on hold, until an Award was agreed including rectification of damage.
A sensible head by all means wins the day. My tenants also felt assured.
Hopefully your issue took the same course?
Hiya,
We have full planning for a side extension but our garage wall is joined to the neighbours, who are VERY opposed to our build. A few PW surveyors have advised that i serve notice and it goes to dissent, which it will not to worry I will get the award and my bulid will commence. My builder isn’t so sure he says the neighbour can still stop the build. I don’t want to spend a fortune only to be stopped and can’t build with right to access next doors land for scaffolding etc. Who do I believe? The builder has seen cases where people have spent £1000s and can’t build but the surveyor assure me there’s nothing the neighbour can do now we have full planning! Not sure if whose advise to follow!! Thanks in advance
I would listen to the party wall surveyors.
You may find it helpful to consider the posts by James Audsley, who specialises in party wall matters. See:
– Introduction to party wall issues
– Party wall award procedure and process
– More complex aspects of the Party Wall Act 1996, which considers access issues (which may well be relevant in your situation).
Simply build on your own land!!
Do not be a greedy, inconsiderate neighbour who attempts to use someone else’s building to support yours.
The Party Wall Act is an utter disgrace, putting the developer’s innocent neighbour(s) through hell when it is totally unnecessary and doing nothing to help or even compensate the unfortunate neighbour.
How would you feel if your neighbour used the Party Wall Act on you?
My neighbour applied for pp for a single storey extension and it was granted. It was to be a certain height and 9 inches away from our boundary wall. No notification or agreements in place ( neighbour did not want to enter into any agreements ). Without our knowledge builder excavated our wall and built a wall right up to our wall. We are faced with a breeze block monstrosity, which was not rendered. Any render will leave me with no room to replace our roof. The builder would have to come onto my property to render the area that is visible. I do not want to allow him access. The gap is only 2 and half inches. What rights do we have
You are lucky that the neighbour did not use the Party Wall Act in order to use the wall of your building as his own.
It’s possible, though very unlikely, that you may be able to get the planning department involved to the point of making him remove the offending wall to where they gave permission for it to be.
What rights you have will depend on whether your neighbour was required to comply with the Party Wall Act 1996. People often seem to forget that the Act is designed to enable works to be carried out, it is not there to give one party a right to stop works. Broadly speaking, the Act does not apply if a party wishes to carry out works on its own land, subject to the rules about excavation in section 6 (and possibly, notices in section 1).
If your neighbour should have complied with the Act and didn’t, then as we say in Practice note, The Party Wall etc. Act 1996 (PWA 1996): Failure to comply with the PWA 1996 and breaches of statutory duty:
Our neighbour is building a rear extension. It is immediately adjacent to our house and a3m high boundary wall. Both are build on our land in our sole ownership.
There is a PWA AWARD in place. It’s 4 days since the work started and BO has already failed to meet her obligations under that Award. This started with failure to give 48 hrs written noticed of specific works. Today they intent to start work digging foundations immediately adjacent to our pro property for which there are structural engineers working methods and text in the award as to how this should be done. The details for the hit and miss foundation are not clear . The text in the award states connecting rods must be used but these are not mentioned in the engineers working methods. There seems not practical to include these as the method statements do not allow for them.The 2 surveyors , particularly the appointed by the BO who has claimed to be on holiday since the Award was first sent to all parties.,do not seem interested in taking action as regards these failures to comply. with the Award. I have spoken with the contractor and come to an agreement on not receiving the 48 hr notice and making him aware of what he should have under the Award.. However with the impending digging of the foundation And the lack of real surveyor involvement once the Award was delivered What she the consequences of failing to meet obligations under the award?
Hi
I am undertaking a basement excavation and have filed the appropriate party wall notices on my neighbour. However, I have received a notice back under section 12 requesting security for expenses and that the security is deposited in Escrow with an Escrow provider. They have suggested https://www.elementalcosec.com/party-wall-escrow/ as they are regulated by the FCA
They say that it can’t be held in my lawyer’s client account due to an SRA warning notice against lawyers using their client account for this purpose. Do you know if this is true?
Thank you in advance
Guidance was issued by the SRA in August regarding the improper use of a client account as a banking facility: see SRA warning notice: Improper use of a client account as a banking facility (6 August 2018).
Hi… How long does an award last after the work has finished? Can you claim 3yrs later, for instance, if you start to experience problems?
We are in an award with our neighbours, no problems so far, but just thinking about the future?
Hi,
We have a row of 4 detached garages next to out homes. One of the garage owners has built a roof terrace with decking on the flat roof.
They didnt ask for planning permission and are now retrospectively applying. The council is going to reject. However the owners want to put another application in adding more weight to the roof.
Do they need party wall agreement from us to continue? I understand the act is an enabling act.
Any advice would be great.
If you haven’t already done so, take a look at our Toolkit. If you can’t access that, the government’s explanatory booklet is a useful starting point to understanding what your neighbour can/cannot do.
Erm, you need a Party wall award when you build on your own land if its proximity is within 3m of the boundary
Only if you are excavating (Section 6 of the Act).
I have received from my adjoining neighbour a registered letter out lining a sum of £2100 to be paid monthly over 21 months for the damaged they caused. I want to get the repairs carried out now. Can I insist on full payment. the neighbour signed the party wall act. I’m going back and fourth to my party wall surveyor without any outcome.
Any advise would be most appreciated
What legal reasons can someone use to prevent a neighbour building on a party wall.
This will be attached to my gable end. I paid for those bricks, so I want to refuse legally, why should my neighbour be allowed to cut into them. To me this is stealing.
please provide good reasons to object and for this to stand up in a court of law. Lots of advice on how to get a successful PWA for the builder. Nothing for the innocent victims of these insensitive planners and builders.
Thank you