Ignore Party Wall obligations at your peril
The recent County Court case, Ormiston-Kilsby v Fattahi reinforces the potentially dire consequences of failing to properly comply with obligations under the Party Wall etc Act.
The Defendant, Dr Fattahi, instructed his contractors to start work on a loft extension, and agreed in the building contract that he would take responsibility for serving the notices required under the Party Wall Act. In Court, Dr Fattahi admitted that he had not read the contractors terms of business, nor subsequent reminders of his responsibilities under the Act. Work commenced without the required notices to the adjoining owners, Mr & Mrs Ormiston-Kilsby.
Scaffolding was erected and work started on the extension in November 2015 but was stopped at a relatively early stage when Mrs Ormiston-Kilsby complained. She alleged that the builders had caused some damage to her roof, and to a flue pipe serving her Rayburn cooker. The Rayburn had been used to provide heating and hot water but was certified as unusable due to the damage and the proximity of the flue to the new extension.
Court proceedings were eventually issued in March 2017 with judgment in May 2019. During the 3 ½ years between the work starting on site and judgement being received, all parties claim significant stress, inconvenience, and loss.
Dr Fattahi and his family have had to live in a house open to the elements, insecure, vulnerable to cold and heat, and with an unfinished room. He has a diagnosis of Parkinson’s exacerbated by stress.
Immediately prior to the dispute Mr Ormiston-Kilsby had undergone major surgery and been diagnosed with a terminal illness. The Ormiston-Kilsby’s planned to sell the house and move to live in adapted accommodation. This was prevented by the ongoing dispute, and by the time judgement was given Mr Ormiston-Kilsby had sadly died.
The contractor was left with an unfinished job on his books, owed the first stage payment for the work of £3,000, and has had to purchase the scaffolding at a cost of thousands which was still up at the site.
The judge recorded that at times she may have looked puzzled by the Defendant’s case, winced at the strength of language used in a letter between the parties, and remains unclear as to the factual and legal basis of the defence. She was obviously unimpressed with the Defendant’s case, and was also fairly scathing about the Defendant’s failure to acknowledge his responsibilities under the Act.
The Court concluded that the Defendant was liable for trespass and nuisance, awarded the Claimant a mandatory injunction ordering the removal of the extension, a sum to cover damage to the Claimant’s property, and further sums for trespass, stress & inconvenience, and special & general damages.
This case shows that a Court will take a dim view of those who fail to comply with the notice obligations and statutory regime of the Party Wall etc. Act 1996, whether deliberately or through ignorance.
Anstey Horne advise both Building Owners and Adjoining Owners of their obligations and rights under the Act. We can provide early advice by reviewing proposals and securing the necessary consents and Awards under the Act in a timely manner to allow a Building Owner’s work to proceed unhindered, or to protect the interest of an affected Adjoining Owner.
A full copy of the judgement can be found here.