Category Archives: Compensation

Adjoining Owners, Compensation, Enforcement, Rights of Owners, Surveyors, Uncategorized

Our Neighour Has Stopped Work but Scaffold Remains

Question

Our neighbour started a building project, a loft conversion and rear extension, but work stopped six months ago and the site has been idle since. The scaffolding remains up and does protrudes over the boundary into our property.

When we renovated our house we installed a satellite dish for television. We have not been able to use it since we moved back in due to the scaffolding blocking the signal. If our neighbour had been honest with us about when he would be carrying out his work, he could have moved scaffolding boards so we could at least watch television in our own home.

Do you have any advice as this is causing us a lot of grief?

Answer

The Party Wall Act provides a right of access to undertake notified works where access is necessary. However, the Act also confirms that the adjoining owner must not suffer unnecessary inconvenience as a result of the works. As the scaffold has not been used for the last 6 months it should have been removed.

You don’t say why work has stopped, you may not know, but if the building owner has run in to financial difficulties or fallen out with their contractor it may have been difficult for them to arrange the for the scaffolding to be removed.

If you’ve not already done so, you should ask the building owner to remove the projecting elements of the scaffold, within a reasonable time period, until they are needed again. Should he fail to do so, you could arrange for a scaffolder to remove the projecting elements (and leave them in the building owner’s garden), relocate the satellite dish etc. and claim the costs back from the building owner. If the cost becomes a matter in dispute it can be determined by the party wall surveyor(s). If surveyors were not appointed originally you still retain that right if a specific dispute such as this arises. Unfortunately, you might still need to go to court to enforce payment of costs awarded to you.

Alternatively, you could apply to court for an injunction forcing the building owner to remove the scaffold as it is now a trespass. I would recommend that you seek legal advice before taking this step.

Adjoining Owners, Compensation, Fees, Surveyors

Is Leak Caused by my Neighbour’s Works

Question

My neighbour recently undertook some works and at about the same time I noticed a leak to my conservatory roof. I cannot find where the water is coming in from but it’s too much of a coincidence for it not to be related to the works. Is it my neighbour’s responsibility to investigate? He doesn’t seem to think so.  

Answer

If you believe the leak to be related to party wall works (I should stress that is the work covered by the Party Wall Act rather than the general works) and your neighbour is denying responsibility you have the option to refer the matter to the appointed surveyors for determination. The risk with this course of action is that the surveyors determine that there is no link and that you not only end up paying to make good the damage caused by the leak but also the surveyors’ fees. 

Referring a dispute to surveyors can be time-consuming so the priority should be to resolve the leak thereby removing the risk of further damage and mitigating your losses. With that in mind, I would suggest organising the repair yourself but recommend that you ask the contractor to write a brief report providing their opinion on the cause (and take photos if inaccessible). This needn’t be anything comprehensive, just a couple of lines written on the invoice. 

The contractor’s opinion will help you decide whether the defect is actually related to the party wall works and, if so, will be an important piece of evidence that should be passed to the surveyors (it may even encourage the building owner to accept responsibility and avoid the need for surveyors’ involvement at all).

Adjoining Owners, Compensation, Rights of Owners

Calculating a Loss When a Crack Widens

Question

I consented to my neighbour’s works on the understanding that I should not suffer as a consequence. Many of the existing cracks have widened but my neighbour is saying because they are existing they are not his responsibility. Can this be correct?

Answer

Certain rights under the Act, such as cutting in to a party wall, come with an obligation to make good damage, while others, such as excavating close to a neighbour’s property do not. However, the building owner (the party undertaking the works) is responsible for any loss or damage caused by their works. The distinction may appear technical but it’s relevant to your query. 

If a crack has widened as a result of the works it is unquestionably damage and as such the building owner has a duty to make good. Importantly, it also follows that you, as an adjoining owner, can elect to receive a payment in lieu of making good (see section 11(8) of the Act). 

If there is no duty on the building owner to make good they will only be responsible for the loss suffered as a result of the works. The ‘loss’ when an existing crack widens slightly is always difficult to assess – it does not cost any more to make it good so the more relevant point is whether, as a result of the crack widening, it has become more urgent to make it good and redecorate. 

Adjoining Owners, Compensation, Enforcement, Party Wall Awards, Rights of Owners, Surveyors

Drilling Next Door has Caused Damage to my Property

Question

My neighbours are extending in to their basement. Recently the drilling work has intensified and I’ve noticed a crack in the hallway. Should they be using a lower level of force in the drilling i.e. so the house is not shaking and creating cracks as they go?

Answer

You don’t say whether there is a party wall award in place but if there is the appointed surveyor(s) should have considered ways in which they could reduce the risk of damage. A typical safeguard would be to prohibit the use of percussive tools (such as hammer drills, kangos etc.) on works directly affecting the party wall. Vibration can carry from works on other parts of the property, over which the party wall surveyors have no control, to the party wall and cause vibration but that would be less intense than work directly to the party wall.

Even if you consented to the works and there’s no party wall award you may want to suggest this safeguard – it is in the building owner’s interest to avoid damage.

The Act gives you the option of either allowing the building owner (or their contractor) to make good the damage or receiving a payment in lieu. This applies whether or not there is a party wall award and if there is a dispute relating to that damage you have the right to appoint a surveyor.  If the heavy work is ongoing it may be best to deal with this later in case there is further damage.

If there is a party wall award in place which prohibits the use of percussive tools but it is being ignored it is more a matter of enforcement – I would suggest that you raise it via your appointed surveyor in the first instance but if that doesn’t work the only remedy is an injunction (although I would recommend you seek legal advice before going down that route).

Adjoining Owners, Compensation, Rights of Owners

Does our Neighbour have the Right to build his Extension Right up to the Boundary and Attach to our Wall?

Question

We currently live in an old terrace cottage and our neighbour is considering building an extension . The neighbouring property was built after the terrace was completed and you can still clearly identify the old cornerstones to our property and where theirs continues, I presume that this identifies the wall as a ‘Type B’ Party wall (covering the entire gable end of the terrace) .

However our neighbour owns roughly 2 foot of land overlapping the cornerstones (on plan there is a clear step between our building and garden). We would like to know if possible whether our neighbour is able to build right up to the boundary and attach to our wall?

Answer

If I’m picturing what you describe correctly then the answer is no – you neighbour would not have the right to enclose anymore of your wall than is enclosed by the existing building – only the area that is currently enclosed is a ‘Type B’ party wall. You could allow it but you would be within your rights to request compensation for allowing the use of your wall.

Adjoining Owners, Compensation, Rights of Owners

My Neighbour wishes to Enclose on my Wall which is built entirely on my Land. What are the Implications?

Question

I live in a terraced house. There is a party wall at single storey level and not at first floor level (at the back). My 1st floor extension wall is on my side entirely and my ground floor extension is against the ground floor party wall which his single storey extension is built against . This historically is because the adjoining owner didn’t want the extension as he had a flat roof terrace over his single storey extension, so my previous owner built on his own land at 1st floor level rather than astride the line of junction.  Now, the adjoining owner wants to build a two storey extension and enclose on my first floor wall. Will he simply be ‘using the space where a party wall would have been built ‘ or would there be future boundary issues? 

He of course has the right to build a separate wall alongside my wall – there would then be a gap I take it, or could his new wall be tied into mine, otherwise it would get damp and debris in the small gap.

Answer

Firstly, if your neighbour now encloses your wall at first floor level it becomes a party wall and give him rights under the Act – e.g. should you want to make any structural changes to the wall in the future you would have to serve him with a notice. You can allow this to happen but most owners would want to be compensated. If the compensation was worked out using the formula in the Party Wall Act is would be half the current day cost of building the section of wall that is to be enclosed but as your neighbour has no right to enclose you may want to request a bit more than that.

Your neighbour does have the right to build a separate wall up to the boundary. If your wall is also built up to the boundary they would be abutting and therefore weathering would be straightforward.

If your wall was built inside the party wall then by allowing your neighbour to enclose you are giving up some of your land as well as creating a party wall. In that scenario, should you insist that the wall was built wholly on his own land then a gap would be created and it would be desirable to close it off with flashing/paneling.

Follow-up

My wall is on my boundary but not on the line of junction. I will allow my neighbour to build up to my boundary rather than limit him to up to the line of junction between our two terraced houses as seems better to have straightforward weathering rather than have to weather a small gap.

In your experience is it usual for a vertical damp proof course to go into the wall or toothing out/interlocking of his wall into mine to stop damp?

Answer

You would only consider a vertical damp-proof course if you wanted to stop dampness from passing between the 2 walls – as they will both effectively be internal walls that should not be an issue. The focus should be on ensuring that no dampness gets in to any gap that remains between the 2 walls – that would be done either with a flashing or if the gap is small with mastic.

Adjoining Owners, Compensation, Fees, Rights of Owners, Third Surveyor

My Neighbour is claiming costs for Damages following Party Wall Work. I wish to Refer this to the Third Surveyor.

Question

I went through the correct channels and served a Party Wall Award.  We started work on a small extension, which was externally finished within a few weeks. Nine months later the surveyor that was acting on behalf of the neighbour wrote to see if they were satisfied and low and behold the neighbour decided that we had damaged their garage wall as we had to remove an encroached fence that had been erected tight up against the corner of their wall and adjacent to our shed.  Not much room to get this fence in and we noted that 3 bricks were chipped on removal of the fence.

This we believe was caused by the neighbour’s contractor when putting up the fence.  Our builder said the post came out easily and it was not caused by them, so we left it as it was after I had taken photos. They claimed damage to seven bricks and guttering.  I managed to prove that the guttering was, as it was, prior to building, but as the damage to bricks was underneath the fence post I cannot prove our innocence.

Our surveyor visited a few weeks later to check and after seeing the photos agreed with us.  However their surveyor, now another 4 months further on is trying to obtain money on their behalf for the damage that is unproven.

I have refused to pay the £150 – £200 they are demanding, but we are being pressurised into paying otherwise they will get an independent Third Party Surveyor to come out, which I have been informed I will have to pay for and that will be a lot more than the amount they are asking for.  As these neighbours have continued to harass us for the last 20 years we are reluctant even to offer a good will payment as we do not want to accept liability for what we believe we did not do.

Can they do this?  Do I have to pay for the Third Party Surveyor under the Party Wall Act?  Is there a time limit on their demands?

Answer

There is no time limit for dealing with damaged caused by party wall works. If the 2 appointed surveyors cannot agree on whether the damaged can be attributed to your works they should refer the matter to the Third Surveyor who was selected at the outset – you will find his name in the party wall award. The Third Surveyor will award who should pay his fees but in most cases that will be the owner who is on the wrong end of his decision.

You are correct to say that the Third Surveyor’s fee will be more than the amount in dispute so it would be worth trying to reach a negotiated settlement.

Bear in mind that the Third Surveyor will only have jurisdiction to award on this matter if the alleged damage was caused during the course of undertaking the notifiable works i.e. the works detailed on the party wall notice.

Adjoining Owners, Compensation, Notices, Party Wall Awards

Wall to Kitchen Extension became a Party Wall when Neighbours did the same. What to do Regarding Subsequent Damp Issues.

Question

I built a wall on my land to create a kitchen conservatory extension. My neighbours then decided they would like to have something similar and I agreed to letting them use my wall and it becoming a party wall, and they paid me £1200 as a 50% contribution to the cost of the wall.
 
Now, 5 years later, the wall is damp and the new owners next door want to get it fixed (most of the damp is on his side, although there’s a tiny bit on mine). It seems that the glass roof was not put on at the correct angle and the guttering itself may not be wide enough.
 
The cost is potentially £8k to fix. This seemed excessive to me, and I said, let’s just try changing the gutter, to something wider, at a lot lower cost and see if that sorts out the damp before spending that sort of money.
 
He has appointed an MRICS surveyor and they want to know if I want to appoint a separate one to represent me.
 
And, thinking about how this has all come about it seems ‘fair’ that all of the costs to correct should, in fact, be his after all! Before the works by his predecessor, the wall was fine – then the work that they did caused the problem.
 
There was a Notice of Agreement to the side return extension, which I signed with the previous owner stating that ‘work… has been completed with no damage or consequence to your property’ and that going forward that we ‘will equally share future associated responsibility’. But clearly I could not have known that their builder had not completed the works in a satisfactory way, so as to cause damp at this later point. Your thoughts on whether he is likely to actually have to cover all of the costs would be appreciated.

Also, is his appointed surveyor really independent? Is there any recourse for me, should the surveyor not do an appropriate and professional job?

Answer

In order for your neighbour to have appointed a surveyor under the Party Wall Act he must have first served notice and you must have dissented to that notice – either by indicating your dissent in writing or by your failure to respond. If that has not been done then the surveyor is simply advising him. If he is simply being advised by a surveyor then it is up to the 2 of you to negotiate over who should pay the repair costs and you may want to employ a surveyor to help you with that.

If notice was served and you have dissented then you are deemed to be in dispute and surveyors must be appointed to settle that dispute in the form of a party wall award. From your description of the problem notice should have been served under section 2(2)(b) of the Act.

The Act allows for the 2 of you to appoint the same surveyor and any appointed surveyor is obliged to be impartial. While the fact that the surveyor is a member of the Royal Institution of Chartered Surveyors (MRICS) is reassuring it would be the fact that he was appointed under the Act that should ensure his impartiality.

Once surveyor(s) are appointed it would be his/their duty to determine responsibility for the defect and the costs should be apportioned to reflect that assessment, as set out in Section 11(5) of the Act (reproduced below).

Where work is carried out in exercise of the right mentioned in section 2(2)(b) the expenses shall be defrayed by the building owner and the adjoining owner in such proportion as has regard to—

(a) the use which the owners respectively make or may make of the structure or wall concerned; and

(b) responsibility for the defect or want of repair concerned, if more than one owner makes use of the structure or wall concerned.

The surveyor(s) decision will be set out in an award which is served on the 2 owners – either owner can appeal the award with 14 days but there would have to be a good reason to take that action.

Question

In (b) below – ‘want of repair concerned’ – means if he wants the repair, but I don’t (as I don’t have the same need) – then just based on that element it would mean that he would bear a much higher proportion of the cost?

Follow-up

‘Want of repair’ in that context means ‘necessity for repair’ – in other words which owner caused, or allowed the defect to occur?

Adjoining Owners, Compensation

Our Freeholder Removed a Supporting Party Wall Downstairs and Caused Damage to our Kitchen. What Recourse do I have?

Question

Our property is a purpose built 1st floor maisonette with a remaining lease of about 70 years.

About three years ago, our freeholder, who also owned the downstairs maisonette, had the downstairs renovated in order to sell.  As part of the renovations he had the supporting party wall in the kitchen removed.  We were given no notice of the work being undertaken. It was only because I happened to be in our kitchen at the time they were propping up the ceiling  that I realized that something serious was going on downstairs.  I felt the floor move and then couldn’t open a cupboard door.

The initial problem for us at the time was that our kitchen floor, which is concrete, cracked and crumbled.  The freeholder (a quantity surveyor) and the builder agreed to remedy the the floor and replace the cracked floor covering. The freeholder did say it would take a couple of years for everything to settle and that there might be a little movement.

Three years later, not only has the concrete kitchen floor started to crack again, both the floor and the work surface appear to be bowing.

I noticed the floor tiles cracking about a year ago, but because the freeholder had said there would be some settling, I thought I would leave it until the problem had peaked and then contact him to get the floor relayed again.  It wasn’t until yesterday that I noticed the wooden kitchen work surface was bowing and realized that the concrete floor wasn’t just breaking up, but was actually raised in line the with rise of the bowing work surface.

Answer

It is likely that the work would have been notifiable under The Party Wall Act as the floor between the 2 maisonettes would be a party structure.

The fact that no notice was served and the work was completed means that this is now a civil matter between the two of you. It would be impossible for me to know the cause of the damage but if you think that it was down to the work on the flat below and the owner does not accept liability you will have to make a claim in the county Court.

Although it is not my area of expertise I understand that claims of this nature must be filed within 6 years

Adjoining Owners, Compensation, Party Wall Awards, Rights of Owners

Rights of Access for the Building Owner and Future Enclosure Upon a Party Wall

Question

My next door neighbours have submitted a planning application for a single storey rear extension along the full width of their property.  We live in terraced ex-council houses; mine is the end of terrace, theirs is in the middle.  They want to use my side access to bring equipment and materials through.  I have no objections to the proposed extension provided they appoint a surveyor to draw up a party wall agreement.

Do I have to contribute to the cost of the surveyor in drawing up the party wall agreement? Can I have written into the agreement that I reserve the right to enclose the newly constructed side wall should I choose to build a similar extension on my property in the future?  Preferably without paying compensation (given that I will be saving them money by allowing access for the materials and digging equipment).

Can I trust the party wall surveyor to carry out a boundary check and make sure that they do not encroach on my side?

Answer

Technically it is up to the surveyor to decide which of the owners should pay the costs of preparing the award but in all normal circumstances that will be the building owner (the party having the work done). You will only have the right to enclose the side wall of your neighbours’ extension if it is a party wall – i.e. built astride the boundary. Compensation will be due upon enclosure (see Section 11(11) of the Act) unless you make a contribution when the wall is built.

It is not the duty of the party wall surveyor (I’m assuming from your email that there will be just one) to establish the true boundary – the owners may request that he do that if there is a dispute but that will be separate to his duties under the Act.

Regarding access, the building owner may have a right of access under Section 8 of the Act but that would not extend to bringing materials through your property – they could only do that with your agreement.