Viewpoint: ‘No Notice No Act’ – Party Wall Act – beware of the High Court Appeal case in Shah v Power and Kyson 2022.
Development Services | David Hollingsworth | 24 May 2022Since the introduction of the Party Wall etc. Act 1996 experienced party wall surveyors have generally agreed that if a building owner who is carrying out ‘notifiable’ works under the Act fails to issue the required notice to neighbouring owners before starting work, surveyors could still be appointed under the Act. A neighbouring owner would appoint a surveyor of its choice under the provisions of section 10 of the Act and a surveyor could then also be appointed if necessary to act on behalf of an unresponsive developing owner.
Enter Shah v Power and Kyson 2022…
This High Court appeal decision upheld an earlier County Court judgement that where no notice has been issued, the Act has not been invoked and surveyors have no legal jurisdiction to resolve disputes arising.
In this case, purported notifiable works had been undertaken, including removal of a chimney breast, without notice having been served. When damage occurred to the neighbour’s property, surveyors were instructed by the neighbouring owner under section 10(4) of the Act on the established assumption that they would have statutory authority to deal with the disputed remedial works.
The judge held that the surveyors’ appointments were invalid together with the award made by them, because the developing owner did not issue a notice and therefore the provisions of the Act could not apply.
The outcome of this case meant that the neighbouring owner was potentially left to pick up the surveyors’ costs and the cost of remedial work to their property. The only recourse was to bring a common law claim in court for damage against the developing owner.
When invoked, the Act provides a cost-effective dispute resolution process which upholds the rights of owners to develop property whilst at the same time protecting neighbouring owners’ interests. At a time when alternative dispute resolution is encouraged and the court system is overloaded, some may feel that this judgement is a step backwards.
However, the judgement reinforces to developing owners that by not serving notice and engaging with the provisions of the Act, they are putting themselves (or future owners of their property) at risk of legal remedies including injunction and claims for damage which may cause delay and significant additional expense.
For purchasers of property where notifiable works have been carried out, this case highlights the importance of solid due diligence to establish whether the procedures of the Act were followed, to avoid unexpected claims.
How we can help
Speak to David Hollingsworth about how we protect our clients when party wall works, including adjacent excavation works, are necessary.
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