My Sister and I are Waiting for the Enduring Power of Attorney over My Mother’s Affairs – Is my Received Notice Valid?

by The Party Wall Surveyor

Question

My mother’s next door neighbour is planning a loft conversion.
 
My mother is 89 and has recently been admitted to a care home. My sister and I are waiting for the enduring power of attorney over my mother’s affairs to be registered in the courts so we can legally act on behalf of my mother. The house will ultimately be sold. The builder has given notice of the works and sent the notice to me. The notice was received during a period when my mother was in hospital prior to being admitted to a care home. As I’m not the owner of the property I do not feel that I can sign this document until the EPA is in place.
 
I have no issues with the loft conversion and am happy for this to proceed once I can legally sign the notice.  The builder states that after 2 weeks we are officially in dispute and he can then send out another notice which if no response is received in 10 days then works can commence in any case, is this correct? I have no wish to get into litigation, nor do I wish to appoint a surveyor as I’m not disputing anything, I just want to ensure that my mothers rights and her property are being legally protected and have therefore requested that the other party show some consideration and patience – am I being unreasonable and how should I proceed?
 
I note also that under the party structure notice the notice period is 2 months, yet a response is required in 14 days – what is the relationship between the two timescales?

Answer

The notice must be served on the legal owner of the property and from what you say that is still your mother. Any notice served on you would therefore be invalid. The notice must also be from the owner rather than the builder.
 
The builder has also mis-understood the procedures. The letter to which he refers is sent to the adjoining owner 14 days after a valid notice and should inform them that they are now deemed to have dissented and must appoint a surveyor within 10 days (covered in Section 10(4) of the Act). Should they fail to do that the Building Owner must appoint a surveyor on their behalf so that an award can be agreed. Work must not commence until the award has been agreed and served. Two months is the statutory notice period. If you were to consent you would also have to waive the notice period to allow the work to commence sooner.
 
If you do intend to consent I would recommend that you record the condition of the ‘at risk’ parts of your mother’s property before work commences to avoid any arguments later about the cause of damage. A set of photographs should suffice.

Follow-up

The notice is as follows:

To
 Mr NAME                        (adjoining owners son)
my address

From
Ms. NAME                       (Building Owner)
(property address)                                
Under Party Wall Act   1996

As building owner of land and premises etc

Owners address

and with ref to Party Wall of mothers address

We hereby give notice etc. description of work and acceptance of their responsibilities towards damage.

Signed by builder on behalf of Ms Hope dated 8th JULY.

I’m still unsure what the 2 month statutory notice refers to.

Answer

The notice is invalid. It should be addressed to your mother as the legal owner.

The 2 month statutory notice period is the minimum amount of time that must elapse between the serving of the notice and the commencement of work, unless it is shortened by agreement.