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Ask the team: what if damage is discovered after party wall work is completed?

What happens if the adjoining owner’s property is damaged when the building owner carries out his works, but the damage isn’t discovered until much later, after the building owner’s works have been completed?

In this scenario, let us assume that in 2009, the building owner gave the relevant party wall notices and a party wall award was made. The work was carried out in 2009-10 but the damage was only discovered in 2012. For simplicity, there was only one party wall surveyor, the agreed surveyor.

This scenario raises a number of questions:

  • What works did the original party wall award provide for?
  • What compensation did the original party wall award provide for?
  • Can the agreed surveyor make an additional award dealing with the 2012 damage?
  • What other rights does the adjoining owner have?

The PWA 1996

A party wall award is made under section 10 of the Party Wall etc. Act 1996 (PWA 1996). It protects both the building owner and the adjoining owner by setting out:

  • What works will be carried out.
  • When and how the works will be carried out.
  • A record of the condition of the adjoining owner’s property before the works begin.
  • If necessary, what works will be carried out to the adjoining owner’s property.
  • Any other matter, including the costs of making the award and any compensation to be paid to the adjoining owner for any inconvenience, damage or loss he might experience during or as a result of the works (section 7, PWA 1996).

A party wall surveyor’s jurisdiction also comes from section 10. Although it is not expressly referred to in the PWA 1996, there is nothing to prevent a party wall surveyor from making more than one award, should the situation call for it. Indeed section 10(12)(c) allows for an award to deal with “any other matter arising out of or incidental to the dispute”, which is generally understood to cover more than one award, and supplemental awards are relatively common.

What the adjoining owner needs to establish

In our scenario, the adjoining owner needs to establish:

  • The cause of the damage and whether the building owner’s works were responsible.
  • What works were provided for in the party wall award. For example, depending on the nature of the building owner’s works, in addition to how the building owner’s works should be carried out, the award may have set out the scope of certain works to the adjoining owner’s property or a method of working that would minimise any damage to the adjoining owner’s property. It may also have provided for a final inspection of the adjoining owner’s property by the agreed surveyor.
  • Whether the building owner’s actual works went beyond the works authorised by the award. If so, then the building owner will be in breach of the award.
  • What compensation was included within the award, which may take the form of “making good” damage to the adjoining owner’s property once the building owner’s works were completed, or may be a money payment in lieu of damages that were anticipated to occur to the adjoining owner’s property.
  • Whether the compensation payments were actually made by the building owner. If not, this will also be a breach of the award.

Compensation in a bit more detail

Section 7(2) of the PWA 1996 envisages that compensation may be payable to the adjoining owner “for any loss or damage which may result… by reason of any work executed in pursuance of this Act.” In our scenario, the 2012 damage to the adjoining owner’s property falls within that definition.

There is no time limit in the PWA 1996 regarding the adjoining owner’s claim for compensation. However, one needs to consider whether the agreed surveyor’s jurisdiction has ended, or whether he still has jurisdiction to deal with the “late” claim for compensation.

It is often thought that a party wall surveyor’s appointment comes to an end when the work under the original award has been completed and signed off in accordance with the terms of that award. Indeed, in Selby v Whitbread & Co [1917] 1 KB 736 (concerned with the London Building Act 1894), the court stated that party wall surveyors’ jurisdiction was:

“continuous and exclusive… it remains unimpaired until the final adjustment of all questions in difference between the building owners who gave the notice and the adjoining owners who received the notice, and until the operations involved in the notice are concluded.”

However, there is little modern authority on the PWA 1996, and even less guidance on the meaning of “until the operations involved in the notice are concluded”. It is certainly arguable that, despite Selby v Whitbread, the surveyor’s jurisdiction continues because the adjoining owner is seeking compensation for damage that was a consequence of works carried out under a party wall award (section 7 refers to “work executed in pursuance of this Act” and section 10(12)(c) to “arising out of or incidental to the dispute”).

If one relies on sections 7 and 10, then, in our scenario, the agreed surveyor will have jurisdiction to deal with the adjoining owner’s 2012 compensation claim and issue a supplemental party wall award. In fact, he may be the only person that does have jurisdiction, since the PWA 1996 grants exclusivity relating to the works set out in a party wall award.

Support may also be found in the judgment in Onigbanjo v Pearson. Here the adjoining owner consented to the building owner’s works, but was subsequently able to engage the PWA 1996 in order to recover compensation from the building owner. There seems no reason why, by analogy, the adjoining owner should not be able to engage the Act to deal with subsequent damage or loss. In our scenario, this may involve the adjoining owner going back to the agreed surveyor, rather than starting any new party wall procedures.

What other remedies does the adjoining owner have?

The adjoining owner should not overlook discussing the matter with the building owner, trying to reach an amicable settlement with him. This should be one of the first things the adjoining owner does.

Also, regardless of whether the adjoining owner can rely on the PWA 1996, he has a number of common law remedies available to him, although care needs to be taken to ensure those remedies do not clash with any statutory rights or remedies. For example, the adjoining owner cannot sue for damages in trespass if what would have been trespass by the building owner was made lawful by the PWA 1996 (that is, the works were included in the award). However, the adjoining owner could sue for nuisance because nuisance is usually caused by someone doing something lawful on their own land. Perhaps confusingly, the adjoining owner may have a claim in trespass if the building owner’s works went beyond what the party wall award authorised him to do.

The adjoining owner may also have have a claim against the building owner for:

  • Breach of statutory duty, provided the building owner’s works fell within the scope of the works contained in the party wall award (see Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council).
  • A payment of money, if part or all of the original compensation remains outstanding. This would be recoverable as a debt.

38 thoughts on “Ask the team: what if damage is discovered after party wall work is completed?

  1. As an ancillary question, if no PWA notice is served and the newly constructed property is sold after completion of construction of the new house attached to the house next door (whose owner had sold garden land to facilitate the construction), is the new owner liable for any damage caused by those works? I am acting for a buyer from an NHBC registered seller who built on to end of terrace and, having purchased the land from the adjoining owner for the development, did not serve a PWA notice on the basis that the works had been agreed as part of the purchase.

  2. And what happens if the building owner’s property has been sold between the PWA being made and when the damage occurs? Are any remedies then available to the adjoining owner under the PWA 1996?

  3. John and Nef

    The PWA 1996 does not deal with successors in title. Generally, as is discussed in Practice note, Party Wall etc. Act 1996: What happens when buying a property and a party wall award has already been made?, a purchaser is unlikely to be liable for a predecessor’s building works, unless those works give rise to a common law claim in nuisance or trespass (or breach of statutory duty if an award was made and the works exceeded those permitted). I appreciate your circumstances are slightly different, but similar principles apply. You may also wish to look at Blog post, Buying a property? Don’t forget about the Party Wall Act 1996.

  4. I have a problem. In 2010, the owner of the adjoining flat carried out a loft extension. He did not involve me in discussion with his planned works, and failed to provide appropriate notice. After the works was completed, he then left the UK, and let his flat. Soon after the flat was let – about 3 months, cracks appeared on my side of the wall, which run from the top of the house to the ground floor.
    Then in 2011, between lets, the owner of the flat repaired his side of the wall- large cracks had appeared there too, from top of the house to the ground floor – in the exact same location as on my side.
    in 2010, we asked for compensation to repair the damage. He refused, although accepted liability. We wanted a party wall surveyor to assess the damage, but he refused, saying that he would use his own general building surveyor. Unsurprisingly, this report admitted that some of the damage was caused by the works carried out. Over time, the damage has got much worse, and the cost to repair our side has doubled. We are still trying to get him to agree to payment. He has tenants in the flat.
    The room that is most affected is a studio style flat that we used to let. Obviously, we can’t do this since the room is damaged. How can we get compensation for the repairs, and loss of rental income? I am now considering a CCJ, but how to enforce it?

  5. John

    I’m sorry to hear about your problem, but we are unable to provide legal advice through this blog.

  6. Therefore as an adjoining neighbour is it best practice to always request a party wall surveyor even if you don’t dissent the proposed works? What if damage appears and a surveyor was not originally sort?

  7. Hi,

    I have an issue whereby last year I had my chimneys removed. I went through the correct process, using party wall surveyors etc (the neighbours managed to delay our works for around 5 months but eventually appointed their own party wall surveyor for whom I was paying).

    The work completed in November 2013, however a few days before christmas that year I was contacted by my surveyor saying that the neighbours had some rubble that had come down their chimney and they would be getting a quote for repair. In January 2014 a quote of around £2000 came through, which included installing new flu liners and repointing the chimney. I discussed this with the building inspector when he came around and he indicated that he doubted the work we had done had caused this and was willing to do a survey of his own on my behalf. I also passed this on to my builders, whom the party wall surveyor said would just be able to claim on their insurance, and they also indicated that they didn’t believe it and were happy to get involved if needed.

    I went back and asked for evidence (before and after reports from the company that removed the neighbours fireplaces, who they appointed themselves rather than using my builders, but for whom I also paid). It all went quiet and I just assumed that the matter had been resolved since no-one had contacted, however now, in October 2014, I have received a letter from the neighbours surveyor saying that he went to do an inspection earlier this month, for which he is charging me 3 hours and he also wants me to pay for the work (I have still not seen any evidence).

    I want to clarify, how long I am liable to pay the neighbours party wall surveyor fees (I am pretty sure the survey did not take 3 hours and most likely involved plenty of tea and biscuits to stretch it for that long).

    Also, if I dispute that my work caused the damage they are claiming, would the next step be court and would it be down to my neighbours to initiate it (and pay their own fees)

    Thanks

  8. As we have said before, we are unable to give legal advice through this forum. That said, a building owner can only be liable for expenses incurred through the party wall procedure and after a party wall award has been made. Two thoughts immediately spring to mind:

    I suggest you look at the original award to see how the works necessary to the adjoining owner’s chimney were dealt with and what compensation provisions that award included.

    As far as I am aware, you can only be liable if there is an award. If there is nothing in place to deal with the present situation, you will need to consult with your party wall surveyor again.

    I hope this helps.

  9. Hi

    I’m planning on having a single story back extension. I am planning to serve a party wall notice on both of my neighbours as I live in a terrace house. If along the line my extension was to cause damage to the neighbours property, for example if cracks appeared or the building started leaning, who will be liable? Is there anyway I can protect myself?

  10. While I cannot give you advice, as you are probably aware, the purpose of a party wall award is to protect both parties. Therefore, I would ensure your party wall surveyor prepares schedules of conditions of both adjoining properties. This will enable a judgment to be made in the future, if one adjoining owner alleges there is damage. Ultimately though, if your building works do cause damage to an adjoining neighbour’s property, you will be liable for that damage under the party wall procedure. I am not aware of a way that the building owner can avoid this liability.

  11. I have agreed a figure for damages caused to an adjoining property under the terms of an Award. Should the figure have VAT applied to it?

  12. I’m sorry that we can’t answer specific questions on this blog, I can only suggest you clarify the award with the party wall surveyor(s).

  13. Hi,

    If there is some small damage caused during building work to a neighbours property (with who a party wall agreement is in place) would the builders be required to cover cost of repair or is it the duty of the property owner?

    Thanks

  14. As with many things, I suspect the answer will depend on who was liable for causing the damage to the neighbour’s property. That will be a question of fact and not something we can address on this blog.

  15. Hi,

    From a slightly different perspective…

    As building owners currently involved in works, we have found our adjoining owners property to be in an unsafe condition. We are a ground floor flat and they are 1st floor, with their floor joists sitting on damaged timber, rather than inside the structural wall.

    We know this is not structurally sound and our builder has suggested that any structural engineer would condemn their floor. Yet, they continue to say this is part of the PWA and hence we should be fixing it.

    Can you give us any guidance?

    Thanks

  16. Unfortunately we cannot give legal advice on this blog. However, if you have not already discussed this with your party wall surveyor, I would suggest doing so. My understanding of the PWA 1996 is that the party wall award is there to deal with the building owner’s works, and works arising from those works. I cannot comment on whether what you have discovered would fall within the scope of the PWA 1996. Your surveyor will be able to advise you on whether there is the need for another party wall award, or whether the structurally unsafe works fall outside the party wall procedure.

  17. Although you can’t give specific legal advice I was wondering if you could let me know whether the burden of proof for property damage to an adjacent property was on the owner of the adjacent property or the owner of the property doing the building work.

    Thanks

  18. As we discuss in Practice note, Standard of proof, burden of proof mean the legal burden on a litigant to establish the facts that support its case (Wakelin v London & South Western Railway Co (1886) 12 App Cas).

    The term standard of proof may also be used in the context of the evidential burden, that is the burden to produce evidence capable of supporting a fact in dispute. This burden rests on the party whose case would fail if no, or no further, evidence on the issue was adduced (Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154).

    In civil cases, the legal burden or standard of proof is balance of probabilities (Miller v Minister of Pensions [1947] 2 All ER 372).

  19. Does a Party Wall Agreement have to be signed off by both parties after a completed works.
    What happens if there is a problem that the party doing the work will not address even after a year of completion?

  20. I am really confused about this party wall agreement. Can you enforce a party wall agreement. The neighbour who is undertaking the work is avoiding a party wall agreement. Please can someone advise me.

  21. I was hoping for some advice (i know this site doesnt give legal advice). So we had a loft conversion done in 2012. We got party wall agreements with most neighbours but not all 7 (we lived in a masionette). We didnt get a PW agreement with the ground floor flat next door, something I wish we had. We have since moved out and rented the flat out. We had a letter from them a few months ago claiming that our work caused damage to guttering which then caused damp in their flat to the front room, this is 3 years after our work had finished. They claim that they couldn’t get hold of us ( they did have our contact details and we had mail forwarding on) and they are asking us to pay many thousands to repair the gutter, fix the damp and lost rent as their tenants moved out. Note that they went ahead and got the work done before consulting us. I am 100% sure that the guttering issues was there before we did the work and the tenants complained of damp for a long time, and were ignored, before they moved out. We are trying to get hold of the old tenants but no luck so far. Are we liable here?

  22. As you acknowledge, we cannot give legal advice on this blog and I will not comment on whether it was necessary to enter into a party wall agreement with the owner’s of the ground floor flat next door.

    We discuss some of the issues that arise in Practice note, The Party Wall etc. Act 1996 (PWA 1996): What if adjoining owner’s property suffers damage after PWA procedure followed? and What if the building owner fails to comply with its obligations?.

    In addition, a couple of thoughts spring to mind:

    Firstly, it is worth considering what works were carried out when you undertook the loft conversion. For example, did you replace the building’s guttering or carry out any works to the exterior of the property? It may be prudent to involve the original party wall surveyor, if you are unsure of what the works entailed.

    Secondly, who is responsible for the upkeep of the external parts of the structure, such as the guttering? I assume that if you own a maisonette, you do so as a leaseholder and there is a freeholder and/or management company that is responsible for such things.

  23. I live in a first floor flat and I propose to carry out a loft conversion with the agreement of my Freeholder. I have served Notices on the adjoining flat owners left and right. Do I also need to serve a Notice on the flat below mine and the ground floor flats in the adjoining buildings, even though none are adjacent to the works?

  24. As I said above, we cannot give advice on this blog and it is inappropriate for me to comment on who party wall notices should be served on. You will need to consider the definition of “owner” and “adjoining owner” in section 20 of the Party Wall etc. Act 1996 see The adjoining owner.

  25. I’m the owner whom undertook excavation works within party wall act, adjoining owner has not suffered building damage but put a written claim in for delays (new build) 18 months ago, I’ve asked his surveyor for evidence of loss to adjoining owners claim and none has been given, however this claim​ is being used as tool now by adjoining owner threatening me to take me to court. Am I right to ignore his claims and threats, adjoining owner surveyor has knowledge of this whole situation also.

  26. Hi – I appreciate you cannot give legal advice.

    But are you able to provide some light on what actions a Building Owner would be responsible for performing when you can prove the works goes beyond the scope of a Party Wall Award – A Breach in the scope and in so doing breaches the party line and boundary line. The works were not necessary as they were nconsistent with other work they had done on other properties on the same street (which they are a landlord of). Also, I have concerns that the (roofing) work has an additional load on the party wall aswell as limiting my ability to improve my property. I have proof that damage has been done where they have pulled back some work.

    The ‘agreed’ Surveyor, appointed by the Building Owner, has not resolved the dispute, following the breach, said they are allowed to do what they did. The Surveyors decisions have been inconsistent and based on assumptions about where the party wall line and the boundary line is. This is despite evidence given to prove otherwise. The Building Owner acted on their decisions without prior consultation nor agreement – even when I disputed this and gave the facts to prove my position.

    I have tried to talk to the Building Owner separately, and convey agreement is to be given by both of us on where the party wall line and the boundary line is and is to be aided by getting accurate measurements – aided by a Surveyor. And the works should be pulled back to where it is specified in the Award. But they have not committed to this

    I have also contacted other Surveyor’s for a 2nd opinion which they are protective about but I do not know what difference their advice would make.

    I am also concerned the Surveyor has signed off the works – can it include works outside the scope?

    Any advice would be gratefully received.

    Many thanks,
    Rachel

  27. It sounds like many of the issues you describe arise from a potential boundary dispute with the building owner and, as you rightly acknowledge, we cannot give legal advice.

    My property colleagues discuss many of the issues that arise in Practice note, Boundaries and boundary rules.

    Insofar as the building owner’s works may have exceeded the scope of what was permitted under the party wall award, see Practice note, The Party Wall etc. Act 1996 (PWA 1996): Failure to comply with the PWA 1996 and breaches of statutory duty.

  28. Hello. We have damage from a basement being dug next to our garage. All admitted and insured to be paid for by the developer. However there are 2 possible solutions: Mini pile or expanding solidifying foam (Uretek). If we choose one and it doesn’t work who will be responsible for paying for the second approach. ie. should we be employing the contractors for remedial work or should the developer? Thanks. Andy

  29. Hi,

    My Neighbour carried out a side extension to his property around 5 years ago. A few months ago i noticed some rising damp in my garage which is adjacent to their property. Having gone outside to look there is lot of rubble that is between the 2 properties which has gone over my DPC level but not theirs. This would be from the cement when building the outer wall of the new extension and excess cement would have fallen. I understand that precautions should be in place to stop cement falling into gaps between 2 properties. There was no party wall notice served when the extension took place. Would the neighbour be liable for any damages/claim?

    1. Any potential liability that your neighbour has to damage to your garage will depend on some many factors, and is not something that can be answered on this blog.

  30. A new build next door under party wall agreement in 2010-11. Single surveyor. Cracks in our wall noted – assesses by adjoining engineers and said to be minor will fix by ‘stitching and redecorating’ paid £1800 in 2012 after monitoring for 3 months. We waited and got structural engineer in 2015-16 to plan for loft extension. He reported subsidence due to deep excavation for basement beyond part wall act limits 3 meters. Cracks have widened. Who should we be contacting. 2 flats in our end of terrace property.

    1. I would suggest that you get back in touch with the party wall surveyor who dealt with the party wall award in 2010-11. It would also be prudent to contact the building’s insurers.

  31. Question: if adjoining owner and building owner each appointed a party wall surveyor to advise on boundary position are the parties then bound to accept the boundary position agreed and advised by said surveyors? Our adjoining owner is trying to discount their opinion after we paid circa £1500 for PW surveyors to assess and create report.

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