What Can Happen If You Fail To Serve A Party Wall Notice?

• Published date: 15 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Conveyancing, Real Estate
• Law Firm: Thomson Snell & Passmore
• Author: Elizabeth Coke

The recent Court of Appeal Case, Power & Kyson v Shah [2023] EWCA Civ 239 confirmed that adjoining owners can only rely on the Party Wall Act where the building owner wishing to do works has served notice under the Party Wall Act (the Act).

Both the building owner wishing to do the work and adjoining owners, whose property is affected by the works, will potentially lose out if the appropriate party wall notice is not served.

What is the Party Wall Act?

A building owner wishing to work on a party wall (or generally speaking a wall/structure shared with their neighbour) or excavate near an adjoining neighbour's wall should serve notice on their neighbour under the Act. This notice initiates a procedure enabling their neighbour to agree to the proposed works before they are carried out. This procedure provides a mechanism for resolving disputes including appointing surveyors to make awards and to determine how any works are carried out.

Click here to the Government's explanatory note on the Party Wall Act.

The Facts of Power & Kyson v Shah

In this case the building owner, Mr Shah, did not serve a party wall notice on his neighbours, (Mr and Mrs Panayiotou) before undertaking works to his semi-detached property. Mr Shah's neighbours believed that whilst carrying out the works Mr Shah caused damage to their property and therefore appointed a party wall surveyor who appointed a party wall surveyor for Mr Shah (which can occur if the Act applies). The two surveyors made an award for compensation for the damage to Mr and Mrs Panayiotou's property caused by Mr Shah's works. They also (as is usual under party wall awards) claimed their fees for dealing with the matter. Mr Shah did not pay as he claimed the Party Wall Act did not apply. So the surveyors took the matter to court to enforce their award and the matter made it all the way to the Court of Appeal.

The Court's decision

The Court determined that surveyors have limited jurisdiction. They do not have the right to resolve any dispute between the parties just those that arise from the Act. As Mr Shah, had not served notice under the Act it did not apply and the surveyors could not make any award under it. Lord Justice Coulson stated; "the service of the notice is fundamental to the whole structure of this part of the Act". Therefore, party wall award made by the surveyors in this case was therefore null and void.

What does the Court of Appeal's decision mean for property owners?

A neighbour of a building owner...