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. She 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.
Mrs Ormiston-Kilsby was also awarded a sum to cover damage to her 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
If you are a Building Owner planning work to your property and want help managing the Party Wall process, please get in touch.
For information on how the Party Wall Act affects you see our Party Wall Fact Sheet.
You can also find further information in our Party Wall FAQs. This has been compiled this from questions we are often asked about the Act.
There is some further information in the government’s explanatory booklet on the Party Wall process.
If you are unsure how the Party Wall Act affects your property and want some advice give us a call.
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