Help! I Have Been Issued with a Court Injunction.

by The Party Wall Surveyor

Question

I have a little problem.  I have been issued with a court injunction.  I started a rear extension and I issued a simple 3 metre notice to the adjourning owner, and I commenced work.  There was a small party wall which formed a small room on my property and nothing for the neighbour.  As we were digging foundations the small party wall was found to have little foundation and when the council inspector came to inspect the first stage of work- he said that I had to pin the wall.  As I started this the wall became very weak, and was on the verge of falling down.  I informed the council inspector and he then advised me to knock the wall down.  At this stage the wall was taken down, however the neighbour was not informed and this was done by instruction of the council inspector.  The adjourning owner has now got a court injunction.  The current stage of the extension is that all foundations have been completed and is currently on the second stage of the DPC.  The claimant wants a proper party wall notice and a surveyor, and has filed for over £6500 damages.  I have a solicitor in place but the claimant is still harassing us stating that if we do not appoint a party wall surveyor, that he will appoint one on our behalf.  After looking at the party wall act- this can be possible, but can someone force a surveyor on me, if so – who bears the cost?  Any information regarding this matter is truly appreciated.

Answer

You are probably aware now that having served the original notice you should have waited for either the Adjoining Owner’s consent or for surveyors to be appointed and an award agreed before commencing work.

There is no clear direction in the Act relating to retrospective notices and awards – until recently it was thought that neither were legal. A couple of recent cases have changed that view and it is now thought that work can be approved retrospectively as long as it is capable of being approved i.e. done to a good standard. That being the case the Adjoining Owner would be within their rights to appoint a surveyor. As they have appointed a surveyor you must also appoint a surveyor so that an award can be agreed. Section 10(4) of the Act gives the Adjoining Owner the right to do that on your behalf if you fail to appoint someone for 10 days after they have requested that you do so.

Who pays the surveyors fees is settled in accordance with section 10 of the Act i.e. by the surveyors, although in all normal circumstances it will be the Building Owner.

Follow-up

Thanks for the quick reply.  At the moment the work is stopped and I will not continue the work in the near future.  Do I still have appoint a suveryour?  Or when I resume.  Also is it true as I’ve been advised once before that if something is made (also to good standard) that i can’t give notice to for that after? (loft conversion). My concern is also that when the adjorning owner made his lost extension, no sufficent notices were given to me either.

Answer

Yes, you would have to appoint a surveyor to authorise the notifiable work which has already been undertaken. If any work that affects the Adjoining Owner has been commenced then it must be completed – they should not be left in a compromised position. Also, any damage that has been caused should be made good.

Following the logic of recent case law completed work could be authorised by surveyors although the Building Owner would have to take the initiative as there would be no way of you forcing them to do that. It is different when the work is ongoing as the Adjoining Owner has the option of obtaining an injunction and forcing the matter – as you have found out.

Follow-up

my dispute with my neighbour is very long and involves many factors such as harresment I have recieved from him etc.

I have another question.  I have reason to believe that The suveryour the claimant is using is his personal friend and the his fees are out of the roof.  He has sent me a bill saying all the work he has done to his client property and he has not set foot on my property.  Can you use a friend as a suveryour? And can he charge me all these fees.

Answer

There is nothing that prohibits a Building Owner from using a friend as their appointed surveyor.

If his fees relate to party wall work they should be agreed by your surveyor when he is appointed – if the 2 surveyors cannot agree what a ‘reasonable fee’ in then the matter is referred to the selected Third Surveyor to make an award.