Anstey Horne

Ignore Party Wall obligations at your peril

Rights of light Case Summary

The recent County Court case, Ormiston-Kilsby v Fattahi reinforces the potentially dire consequences of failing to properly comply with Party Wall obligations under the 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.

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.

Contact

For more information on how the Party Wall Act affects you as a Building Owner or Adjoining Owner, see our Party Wall Fact Sheet.

We have also compiled some Party Wall FAQs from questions we are often asked about the Act.

If you are unsure how the Act affects your property please give call call our surveyors direct on 020 4534 3135. If you want one of our team to call you please fill in our Contact form and we'll be in touch.

For the contact details of a surveyor local to you, see our Birmingham, Bristol, Manchester, Norwich & Plymouth Surveyor details. We have unrivalled expertise in Party Wall matters and were instrumental in the development of the Party Wall etc. Act 1996.

For advice direct from one of our Surveyors, please call our Enquiry line on 020 4534 3135.

If you are planning work that is covered by the Act, or if you have received notice of work from a neighbour and want advice on how best to protect your property please contact:

Geoffrey Adams

Geoffrey Adams

BEng (Hons) PdDip MRICS

Senior Director

Party Walls

Mark Amodio

Mark Amodio

MCIOB BSc (Hons)

Senior Director

Party Walls

Rickie Bloom

Rickie Bloom

BSc (Hons) MRICS

Director

Party Walls