NO NOTICE - NO ACT
Some people believe (including Party Wall Surveyors) that it is not always necessary to serve a Notice if written consent is obtained from an Adjoining Owner. It is likely that this belief stems from two factors:
1. If the neighbour provides written consent to the work then the Building Owner simply cannot be doing anything wrong.
2. Section 3(3)(a) of the Act states 'Nothing in this section shall prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2.'
The case of Kaye V Lawrence (2010) tidied this up. Whilst the case was not primarily about the service of Notices, Judge Ramsey stated: ‘The 1996 Act provides that the building owner must give notice if he wishes to carry out work under sections 1, 2 and 6. If the matter is not agreed between the parties, the matter has to be resolved by an award of the surveyors or the third surveyor. Unless and until that happens the building owner cannot carry out the work and then can only carry out the work in accordance with the agreement or the award.’
It is clear from this interpretation that Notices are an obligation. In any case, should an Adjoining Owner be willing to provide consent, they can do so on the acknowledgement form to a Notice. At TPWC we can serve Notices for you, free of charge. This will help to ensure that you are fulfilling your legal obligations by notifying your neighbour.