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Property Surveying Blog

Written by Sadek Miah

In this property blog post, we will be discussing the case of Manu v Euroview Estates and the important points that can be taken from it relative to the Party Wall etc Act 1996.

This case looks at Party Wall Disputes that arose between the Party Wall Surveyors on various points that surrounded the Party Wall procedures and the construction works as a whole.

The issues started right from the start of the process, with the adjoining owner’s Surveyor questioned the validity of the building owner’s Surveyor’s statutory appointment because it preceded the Party Wall Notice served.

This was quickly dismissed by the courts with the judge viewing the appointment letter pre Notice as a conditional appointment dependant upon the adjoining owner’s Notice response. He confirmed that if a dispute would arise, it would be nonsensical, by his judgement, to hold that the building owner could not make a valid appointment until after any difference had arisen.

This just goes to show that so long as a Party Wall Surveyor’s letter of authority is carefully drafted and worded, it will ensure he or she is correctly and validly appointed if, upon receipt of the Party Wall Notice, the adjoining owner opts to dissent. It also demonstrates how a common-sense approach to the interpretation of the Act is the most effective.

Following on from that, one of the main points of the dispute was the validity of the Party Wall Notice.

The building owner’s Party Wall Surveyor had served a Party Wall Notice for underpinning under Section 2(2)(a) however had not served a Notice covering excavations under Section 6 of the Act. The adjoining owner’s Surveyor, therefore, made the argument that this additional Notice was required. This was again rejected by the judge who held the view that excavating would be a consequence of underpinning. In effect, you cannot do one without the other. Again another common-sense interpretation of the Act, which we believe highlights the importance of being facilitative when dealing with Party Wall procedures.

Another point that was brought into question by the adjoining owner’s Surveyor related to the validity of the Party Wall Notice served by the building owner’s surveyor and his opinion on defects within it. In particular, the foundation depth not being confirmed which he thought invalidated it.

Under the Party Wall etc Act 1996, when excavations are taking place, as per Section 6, the Party Wall Notice has to include plans and sections of the proposed works, otherwise known as drawings. These should illustrate the site and depth of any excavations the building owner proposes to undertake.

While the Party Wall Notice and proposed plans omitted an exact depth, the judge’s view was that while Notices need to be clear and show the depth of the proposed excavations, it is not expected to for them to show the exact depth. So long as they are clear to a layperson that would be sufficient.

This is an important point, as it means that when small design changes or clarifications take place, new Party Wall Notices are not needed to be continually served and re-served which would quickly become an administrative nightmare.

Another important outcome of this case is that if a Party Wall Surveyor or owner acts upon a Party Wall Notice and then proceeds with the Party Wall procedures, they cannot at a future date, further down the line then raise issue relating to that Notice as in the Notice would have served its purpose so the defects are effectively waived. Again, another important point as it means that if Notice issues are pointed outright at the end of the Party Wall Award agreement process, the building owner wouldn’t need to serve a new one, or be subject to fresh statutory Notice periods.

This is an important point for building owners and building owner’s Surveyors as it ensures that there isn’t any delay to the works on site.

The key point to consider in this case is why it went down the route of litigation in the first place. In our opinion, this derives from the fact that the adjoining owner opted to appoint a Solicitor to act on their behalf as opposed to a Surveyor. It is worth noting that as per Section 10 of the Party Wall etc Act 1996, when a dispute arises, a Surveyor will need to be appointed to determine that dispute.

Section 20 of the Act goes on further to confirm that a surveyor, means any person not being a party to the matter. In short, this means that anyone can act as a Party Wall Surveyor so long as they aren’t a party to the matter.

Our take on it here at Berry Lodge is that so long as Surveyors have a good working knowledge of building works, structures and aim to carry out their statutory duties s economically they are well suited to be an effective Surveyor under the Act.

Solicitors, on the other hand, are in our opinion trained to adopt a more technical and legalistic approach. This could not only lead to delay but also dispute! Which is the very opposite of a Party Wall Surveyor’s role in resolving disputes?

Here at Berry Lodge Surveyors we are Building Surveyors by trade and specialise in Party Wall works. If you have a Party Wall matter you would like assistance with, call us now and we will be happy to assist.