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. He agreed in the contract for work that he would take responsibility for serving the notices 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.
Events that led to the Party Wall Dispute
Dr Fattahi’s contractor erected scaffolding and started work on the extension in November 2015. Building work 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 3½ years between the work starting 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.
Mr Ormiston-Kilsby had been diagnosed with a terminal illness and undergone major surgery immediately prior to the dispute . 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.
Judgement on Party Wall Obligations
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. She 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. The Claimant was awarded 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. Any party undertaking notifiable works ignore Party Wall obligations at their peril.
A full copy of the judgement can be found here.
Further Guidance when appointing a Party Wall Surveyor
For further information please see our Party Wall Fact Sheet.
We have also compiled some Party Wall FAQs.
See our previous article for guidance on choosing a Party Wall Surveyor.
The government have published an explanatory booklet with information for Building Owners’ and Adjoining Owners’ about the Party Wall process.
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.
If you are planning building works that are covered by the Act, or for further information or advice on Party Wall matters please contact :
DD : 020 7947 0960
M : 07816 845 160
DD : 020 7947 0965
M : 07507 709 434
DD : 020 4534 9339
M : 07803 504 021
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