A Building Owner is a person or corporate body who owns a property where it is desired to undertake works deemed to be 'notifiable' under the Act. This includes, but is not limited to, the construction of a new wall at or astride the 'Line of Junction', 'Adjacent Excavations' to facilitate the formation of foundations or to form basements within a specified distance from an adjoining structure and works to a 'Party Wall'. The most common building projects falling within the notifiable criteria of the Act are side and rear extensions, loft conversions, basement conversions and repairs to party walls, including underpinning and roof-level works.
Where such works are desired, any party defined as an 'Adjoining Owner' under the Act must be notified. This is not limited to freeholders of adjoining properties, but extends also to leaseholders where the lease or tenancy is for a 'term certain' exceeding 12 months.
Where the Adjoining Owner has been served with an 'Adjacent Excavation Notice' under section 6 of the Act, or a 'Party Structure Notice' under section 2 of the Act, a response is required within 14 days of the date of the notice, or a 'deemed dispute' will arise. A response to a 'Line of Junction Notice' served under section 1 of the Act is not required and a deemed dispute will not arise in the event no response is given.
The Adjoining Owner may elect to 'consent' to the Adjacent Excavation Notice and/or the Party Structure Notice, in which case no 'dispute' will arise under the Act and the Building Owner may proceed with the notified works once the statutory notice period has elapsed. This is one month in the case of Line of Junction and Adjacent Excavation Notices and two months in the case of Party Structure Notices. The Adjoining Owner may elect to consent, but subject to a 'Schedule of Condition', meaning a factual record of the existing condition of the Adjoining Owner's Property is undertaken before the Building Owner commences the notifiable works to assist the parties in the event of any later allegations concerning damage.
Where the Adjoining Owner elects to 'dissent' to the notice(s), or in the event the Adjoining Owner does not respond to the Adjacent Excavation and Party Structure Notices, then a 'dispute' arises under the Act. Accordingly, the parties must then appoint a statutory tribunal pursuant to section 10(1) of the Act in order that the dispute may be determined before the notified works may lawfully commence. The statutory tribunal can either be in the form of a jointly appointed 'Agreed Surveyor' acting alone, or the parties may each appoint their own surveyor and the two party-appointed surveyors must then select a 'Third Surveyor' to adjudicate any disputed matter between the two party-appointed surveyors or the parties. Once appointed, the party wall surveyor's appointment cannot be rescinded. More information on the role of the party wall surveyor can be found here.
Once a dispute has arisen and the statutory tribunal is in place, the appointed surveyor(s) will undertake a process of due diligence to ensure the Building Owner's proposed works are lawful and permitted by the Act before making an 'Award' to determine the dispute. The Award is a legally-binding document that resolves the dispute and, ultimately, authorises the Building Owner to lawfully proceed with the notified works in accordance with the conditions of the Award. The appointed surveyor(s) may, therefore, decide on the time and manner of executing the works and deal with any other matters in dispute between the parties or incidental to the dispute, including the appointed surveyor's fees in making the Award.
The parties to the Award have an absolute right of appeal in accordance with section 10(17) of the Act, albeit the timeframe for making such an appeal is limited to 14 days from the date the Award is served.
In some instances, the appointed surveyor(s) may be required to make further Awards where any further matters in dispute arise. For instance, a dispute may arise between the parties regarding damage and a request for making good/compensation.
If a Building Owner commences notifiable works without following the notification procedures set out in the Act there is a risk that the Adjoining Owner may seek an injunction to stop the works proceeding until the Building Owner complies with the Act. This will invariably cause a delay to the Building Owner's works and may have significant cost implications. The matter may be compounded in the event the Adjoining Owner seeks recovery of legal costs. Recent case law serves as a stark warning to Building Owners who proceed with notifiable works unlawfully.
If you are a Building Owner and intend to undertake notifiable building works, please contact us for initial, no-obligation advice.