• Ben Mackie

A great Party Wall podcast

This is a great Party Wall podcast with Stephen Jourdan QC and Cecily Crampin discussing the case of Shah v Power & Lee Kyson [2022].

‘No Notice No Act’.

Many interesting points are raised, particularly the idea that the building owner can choose whether to serve a party structure notice.

I will briefly discuss two points raised in the podcast, but please have a listen, as it has many excellent points, and I may also have misunderstood the two points I raise.

1. The adjoining owner’s recourse if the building owner does not serve a party structure notice

Cecily Crampin outlines the fact that the adjoining owner has recourse, including obtaining an injunction. If you know your neighbour is poor / vulnerable, a building owner can easily take advantage, knowing that the adjoining owner realistically does not have any recourse at all. Also, point 2 is that serving a party structure notice is ‘optional’ so could the Court grant in injunction forcing the building owner to do something he has the right not to do?

2. Serving a party structure notice is optional

Stephen Jourdan says you may only need to serve a section 3 notice if you want to take advantage of any section 2 rights, but a building owner may not want to exercise any rights. He says you need to serve a notice if for example, you require access onto the neighbour’s land, or if you wanted to cut into their half of the party wall. However, if you are only doing work to your own property, ‘you don’t need any rights’. An example would be the removal of a chimney breast where you can do all the work on your own land. Stephen Jourdan points out that it therefore isn’t clear as to whether you need to serve notice.

This interpretation is very interesting and not one I had considered. It has the benefit of allowing the building owner to decide whether he wishes to invoke the Act to exercise certain rights. The building owner may decide that there is no need for a notice if he is simply removing a chimney breast where this is done on his own land. The building owner may wish to take advantage of the Act in order not to be at a disadvantage in the common law claim against him.

Invoking the Act is therefore a choice, particularly with regards to section 2 work, and unless the building owner can see a clear benefit, perhaps he has the right not to invoke the Act, with its associated costs and burdens.

Any thoughts are appreciated.


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