Nobody Served Notice and the Works are Almost Complete

by The Party Wall Surveyor

Question

I own a flat above a shop and the freeholder (shop owner) has started to build 3 flats inside the building. The builder rang me and said that he needed to get into my flat to reinforce some ceilings and soundproof. I never realised that they were building flats, I thought the work was going ahead for storage for the shop below. I agreed in principle subject to my receiving a party wall notice outlining the works to be undertaken, photographs being taken before and after and also that I was left in at least the same position, if not better, than when the work started.

The builder said he would contact the architect and the notice would be forthcoming. I do not live in the flat, I use it for short breaks. I visited the flat 5 or so weeks later having had no contact from the architect, so assuming nothing had been done, as I hadn’t received anything or signed anything. When I arrived, I found that my flat had been entered, the works carried out and that the freeholder was building three flats, of which I was completely unaware.

The builder, showed me an e-mail sent to the architect which clearly asked him to issue notices and also has the addresses of myself and other flat owners.

I have contacted the architect but he seems reluctant to speak to me( ie he’s not answering e-mails). I still do not have the party wall agreement outlining the works and have obviously not signed anything giving consent.

Should I just accept what’s happened and move on, or upset the freeholder by making an issue.

Answer

Responsibility for serving party wall notices lies with the Building Owner (the person planning the works) so if you do intend to peruse this it should be with that party rather than the builder or architect. The important point here is whether the party wall aspect of the work is complete. It’s difficult to tell from your description what part of the works come within the scope of the act but if they have already been completed any notice or party wall agreement will be invalid. The Party Wall Act does not allow for retrospective awards.

If there is still party wall work to be undertaken you should insist upon the notice. It is up to you then whether or not you exercise your right to appoint a surveyor or consent to the works, as long as the notice has been served you will have the right to appoint a surveyor later if any damage occurs. Also, the Building Owner would only be entitled to access under the Act if notice has been served.