A neighbourly approach to party wall matters.
This article will provide advice on how to navigate the party wall process in a friendly, neighbourly manner. If this advice were taken by members of the public, it would likely reduce the number of disputes requiring resolution under section 10 of the party wall act, and it would likely maintain good neighbourly relations.
Top tips are to:
1. Communicate early, clearly, and in person.
2. Suggest the ‘agreed surveyor’ approach.
3. Respect your neighbour’s decision.
Neighbours are all different, and every situation is unique. There is no ‘normal’ way for a neighbour to respond to a party wall notice. Many people believe that consent is great, when sometimes it can actually lead to issues. Conversely, a neighbour ‘dissenting’ to the work and raising a ‘dispute’ isn’t necessarily being difficult or obstructive. Whatever a neighbour decides to do, it could be a good idea to follow these three points.
1. Communicate early, clearly, and in person
All too often, the first time that people become aware of their neighbours doing some building work is when they receive a letter from ambulance chasing surveyor. This is a surveyor who looks for recently submitted planning applications, and they then write to the neighbours in the hope of encouraging a dispute so that they can make money from it. This is done behind the building owner’s back, and it takes away the opportunity for neighbours to discuss matters on their own terms.
The way to beat this, is to be aware of the problem, as the ambulance chasing surveyors wish to exploit a lack of knowledge so that they may capitalise on it. The party wall professional bodies are happy to allow this behaviour, so without any support, the public are left to pick up the pieces. If you put in a planning application, the best thing to do could be to speak with your neighbour prior to submitting the application. This will get you ahead of the ambulance chasers, but in any case, the principal of having a discussion with your neighbours regarding your proposals should be encouraged where possible, at the earliest stage. From experience of having dealt with thousands of disputes, one of the key drivers is a perceived lack of communication. For this, the building owner will only have himself to blame.
Recently a building owner wished to start work straightaway, and really wanted his neighbours to consent, to save money and avoid delays. Calling a party wall surveyor into the process so late in the day isn’t great, and there can be alarm from neighbours who receive a notice whilst non-notifiable work is being undertaken i.e. work to which the party wall act does not apply.
The following comment, received from a neighbour in this situation is very telling:
‘It would have been appreciated if your clients had engaged with us in a neighbourly manner and given even just some notification other than the sudden arrival of a skip plus banging and drilling on the adjoining wall on the day work began, which was before your initial letter.’
This neighbour went on to dissent to the notice, and appoint a surveyor to act on his own behalf.
Unperturbed, the building owner decided to do some excavation, firstly away from the party wall whilst he awaited the awards, but then he got closer until he went well within the 3 metres i.e. he undertook work in pursuance of the act without an award. This led to his other neighbour sending him legal letters with threats of an injunction. All in all, a stressful build for all parties involved, with increased costs and acrimony – all of which was completely avoidable. The estimated bill for the building owner was circa £6,000, and his bullish behaviour meant the agreed surveyor route was closed off, and consent was certainly no longer an option.
If a building owner wishes to undertake work, he should inform his neighbours as soon as possible. It can be a good idea to ascertain whether they have any concerns. Some concerns can easily be dealt with, and a neighbour can be appreciative to a building owner who takes the time to explain the proposed works and their implications. Quite often, a building owner will not have all the answers straight away. If a building owner doesn’t know the answer to a question, instead of guessing, the best thing to do is to take advice from the architect, builder, engineer or party wall surveyor. Evasiveness can push a neighbour to a dispute, so answers should be specific to the neighbour’s concerns. Additionally, it is important that if a building owner gives reassurances, that these are adhered to and taken seriously. It can severely damage neighbourly relations if promises are broken, and it should be noted that even where a neighbour consents to the work, new disputes can arise. This is another incentive to ensure the neighbour is respected, not just prior to the commencement of works, but throughout the build and even after.
Suggest the ‘agreed surveyor’ approach
A building owner should not suggest how a neighbour should respond to a notice. There have been plenty of cases where vulnerable people have consented under duress, and this is simply appalling. A neighbour should be given space to respond to a notice, without pressure. If, however, a neighbour dissents and appoints his own surveyor, then why not ask whether the neighbour’s chosen surveyor can act as the ‘agreed surveyor’? This should be much more common than it is.
Unlike party-appointed surveyors, an agreed surveyor is obliged to act impartially. Furthermore, if the neighbour has chosen the surveyor, then it is hard to understand why the neighbour would reject your request to share his chosen surveyor. There can be perfectly valid reasons as to why the agreed surveyor proposal is rejected, but this approach is simply not explored enough, and the building owner is simply expected to pay two sets of surveyor’s fees without question. Attempts can be made to ensure that the building owner only pays one surveyor’s fee, saving a not so small fortune, and these discussions can be had amicably with a view to ensuring both sides get a satisfactory outcome. With an agreed surveyor, both sides are protected by a party wall award, and the both sides can be satisfied that the award was served in a cost-effective manner. There is also less of a risk to the neighbour incurring fees, as it shouldn’t be taken for granted that the building owner will settle both sets of surveyor’s fees.
In the case of Amir-Siddique v Kowaliw the Judge found that the neighbour had the right to appoint his own surveyor, and dismissed the principal of reciprocity. However, he did find that when the building owner asked the adjoining owner whether she could use his surveyor as the ‘agreed surveyor’, that the neighbour was unreasonable to refuse this request. The building owner incurred unnecessary fees, and the neighbour was made to settle her own surveyor’s fees which were seen as in addition to what was reasonably required to settle the dispute.
The agreed surveyor approach is not always the best option, and the case of Amir-Siddique v Kowaliw has done little to change how fees are allocated. It is unheard of for surveyors to agree that each appointing owner settles his own surveyor’s fees, save for shared structures or walls that require repair under section 2(2)(b) of the party wall act. If the agreed surveyor approach is rejected, the building owner can consider fighting the apportionment of fees, however, in order to maintain neighbourly relations, it may simply be best that the building owner settles all fees, certainly for now, whilst surveyors ignore the case of Amir-Siddique v Kowaliw. The chances of successfully convincing appointed surveyors or a third surveyor to adopt the principles of Amir-Siddique v Kowaliw are currently very low, and money can be wasted on escalating matters. That being said, the landscape does need to change, and it can only change with people taking a chance, and doing what is right.
Suggesting the agreed surveyor approach is generally a good idea, and it can do no harm to simply ask the question. As the neighbour has chosen the surveyor, there should be no reason as to why they cannot share their chosen surveyor.
Respect your neighbour’s decision
A building owner shouldn’t really have any expectations when it comes to a neighbour deciding on how to respond to a notice. Reciprocity is often expected, for example if you consented to a neighbour building his loft, you can reasonably expect him to consent to yours. However, a neighbour is not obliged to reciprocate, and where this doesn’t happen, it can really leave a bitter taste. The best things to do is to move on and ensure that the situation is dealt with as efficiently as possible, however antagonising it may be.
There is no right way to respond to a notice. Sometimes consent is the right thing to do, other times dissenting can help to maintain good neighbourly relations. The neighbour who is the recipient to a notice is the one who gets to choose how to respond. Some building owners apply pressure to encourage a particular response, which is often consent. Aside from applying pressure, a building owner can also serve a notice where the only apparent option is for the neighbour to consent to the work. The concept of dissenting and going to a dispute is hidden from the neighbour. Applying pressure can simply put the neighbour on the defensive, meanwhile a neighbour who receives a notice where only consent is an option may view the building owner with suspicion. It is better to ensure that neighbours are well-informed, so that they can decide what is right for them.
Some neighbours may simply dissent and go to dispute because they are against the works in general, and they simply want to incur fees, cause delay, and to generally be as obstructive as possible. Where this happens, don’t bite. The dispute is quickly taken out of the neighbour’s hands and their appointed surveyor will be required to act effectively, ensuring that there will be resolution to the dispute. The difficult neighbour can appoint a difficult and expensive surveyor, but this can still be managed through the building owner having his own good surveyor, and with the safety net of the third surveyor.
A neighbour dissenting, for whatever reason, needs to be dealt with, and it is best to take emotion out of the dispute where possible. Appointed surveyors should proceed to find as much common ground as possible to reduce the scope of the dispute. This also helps everyone to focus on the key points. Clear and early communication, along with respecting the neighbour’s decision, are likely to reduce the scope of any dispute. Emotion can muddy the water and complicate matters, so it is best to channel all effort into resolving the dispute so the work can start without escalating costs and increased delays.
Lastly and perhaps most importantly, the neighbour will often have perfectly good reasons for responding to a notice in a particular way. Simply give them the benefit of doubt where possible.