HELP - Neighbour dispute over party wall agreement

kh904 · 10 February 2016 at 11:41PM

Hello,

I'll try and keep this a brief and concise as possible!

My parents are having an issue with our neighbour (who is a buy to let landlord).
My parents are trying to get a rear extention built, we have planning permission (which runs out in a couple of months).
My parents have tried getting the neighbour to agree to a party wall agreement, the neighbour is being a real PITA and not cooperating.
We have appointed a surveyor on his behalf but he wants his own, while not ideal fair enough.
The problem is our surveyor is saying that the neighbour isn't even cooperating with his own surveyor.

Any ideas what we can do if he isn't cooperating, especially since our planning permission is running out?
Can't our surveyor and his surveyor draw up an agreement if the neighbour isn't responding? This is what would have happened if we appointed a surveyor on his behalf anyway.

Thanks in advance.

Doozergirl · 10 February 2016 at 11:55PM

Start work? I mean, that should prompt him to actually do something - or not.

kh904 · 10 February 2016 at 11:59PM

The neighbour, or should I say owner/landlord is a nasty piece of work. His other neighbour (the house 2 doors away from us) also ran into problems with a party wall agreement.

So starting work will not be advisable, as he will go to court - either to get an injuction or claim damages.
I'm not sure what his problem actually is, but even the surveyor says he has never come across a guy like him!

Doozergirl · 11 February 2016 at 12:20AM

How much work is there that falls under the act?

It takes time and money to go for an injunction. Once the work is done, there's nowt to be done about it.

All I can see is that he's going to spend your money either way. The PWA is an invitation to nasty neighbours to spend your money.

He either dictates how you live by his awful behaviour, or you dictate for yourselves.

change the design?

Doozergirl · 11 February 2016 at 12:27AM

Even these people are saying it's a pile of old socks and they do it for a living, apparantly :cool:
http://www.peterbarry.co.uk/blog/2009/oct/23/what-do-when-your-neighbour-ignores-party-wall-act/

If they claim damage, you prove their was no damage beforehand by means of photos etc. - so take lots!

If you were planning to attach it to the party wall - don't. Detach it slightly, then only the footings apply and they can be dug and filled within days.

It's great to do things properly. So do everything else properly. Waiting forever for him isn't fair on you and all this stress is unlikely to have changed building methods and you'd still always have to put right any damage. No penalty for not complying, so what is the point?

kh904 · 11 February 2016 at 12:52AM

It's a full width extension up to the boundary and within 3 meters of his property and the foundations are below the neighbours foundations.
It will also involve moving a shared waste water drain so it's unavoidable.
Trying to do the works before he gets an injunction is not going to be realistic. Taking photo's wouldn't really protect us much because we won't have access to the condition of his property inside, and he can claim the works caused damage inside.
Proceeding work without the party wall agreement will be a no-no as we would be fully exposed .

I'm pretty sure the the surveyors between themselves can sort it, even without the neighbours cooperation? It may mean involving a 3rd surveyor?

iwanna · 11 February 2016 at 1:07AM

Agree with the suggestions above to start work, you just have to have a 'meaningful start' before the expiry date. Perhaps you can get to the fist visit Building Control stage then your start date will be documented/confirmed ... then you can concentrate on getting the daft neighbours PWA issues resolved without worry of the PP expiring.

MisterBaxter · 11 February 2016 at 5:58AM

Remind your surveyor and the other surveyor that they don't work for you or your neighbour rather they work in the interests of the PWA and the Party Wall itself. If your neighbour isn't co-operating with the appointed surveyors they can and should conclude matters to the best of their ability in a manner that satisfies the requirements of the PWA. As the Building Owner you will be paying both sets of fees but technically your neighbour should have absolutely no influence whatsoever over the outcome. If the neighbour isn't allowing access etc. the two surveyors can agree an Award with the information they have and the Adjoining Owner is the only one who potentially loses out.

There is a mechanism within the Act that allows for a third surveyor to be appointed where the first two can't conclude matters with agreement.

If you start works covered by the planning consent then you will keep the planning consent alive so that overcomes that issue.

Unfortunatly I disagree with Doozergirl on the injunction; the PWA is a legal requirement if you commence work without it your neighbour could if they so wish obtain a 'WIthout Notice Injunction' that entails little more than completing some paperwork and comes into force immediately; normally you would bear all the costs because you have failed to comply with your legal obligations but there is possibly scope to counter these by making reference to your neighbours lack of co-operation. Up-front costs for your neighbour could be prohibitive but if they can fund it on the expectation of getting it back they may chance it. When it comes to damages you should look up the 'Roadrunner Properties' case; they didn't bother with PWA, even tried to suggest in Court that it didn't apply because they didn't serve notices, the Court threw them out and put the burden of proof wholly on them to show they hadn't caused damage to the Adjoining Owners property, it was expensive exercise for them.

Most people will tell you the PWA is pointless and toothless; for the most part this is true as there are no direct penalties and most neighbours are either ignorant to it or don't really care provided nothing goes wrong. You are in a slightly different scenario as you neighbour is already making waves, knows and understands their rights and is looking to make it an issue. All of this means that they may go all the way if the proper process isn't followed. This takes me back to the first point however in that the surveyors work in furtherance of the Act and should conclude matters in compliance with the Act even if that means appointing a third surveyor to effectively arbitrate their failings.

If you think that your neighbour may just be bluffing then just go ahead and hope that he is but understand that it is not risk free.

Doozergirl · 11 February 2016 at 6:13AM

Lovely post Mister Baxter, I'd only only disagree that the neighbour is not making the PWA an issue, they are making the extension an issue. If the PWA was important, they'd co-operate. It's sheer beligerence and an attempt to block anything happening at all.

If the surveyors can sort themselves out, lovely. If they can't, then I would force the neighbours hand rather than live like that.

The neighbour has deep pockets if they want to spend money saying that someone has ignored the act, when they quite clearly haven't. I trust any adjudicator to see the obvious.

jackyann · 11 February 2016 at 8:09AM

I have to say that in this situation, I'd consider moving. I know it seems drastic, but spending money on trying to force co-operation from a neighbour, in order to improve your house.....well, mostly I'd rather spend the money on moving.
I do realise there may be compelling reasons for staying - all situations are different.

MisterBaxter · 11 February 2016 at 8:19AM

I suppose when I said making PWA an issue what I actually meant was using the PWA as an obstacle by intentionally making it an issue which I'm afraid is common; object at planning stage and when that fails use PWA as the blocker.

I've not been through an injunction process but we had a lecture at a CPD session on it from someone who had, the problem seems to be that because it is a legal requirement to have either an agreement or award in place before applicable work commences to simply start is technically to ignore the requirements of the Act. The neighbour may end up with costs if they went down the injunction route, that is a risk they take, but so far they have complied with their obligations under the Act by dissenting and appointing a surveyor. A good lawyer could probably even offload any costs the neighbour did incur gainst the PWA surveyor as technically they are the ones not acting diligently. The Act can't compel the neighbour to cooperate with the surveyor but clearly if they don't they may not have any of their legitimate concerns addressed in the Award which is why it's always in the interests of all parties involved to cooperate and have their input whilst they have the chance.

In this particular case I would start pointing the finger at the two surveyors involved. As soon as the neighbour dissented they took over the process. I don't do PWA surveyor role myself but I suspect anyone involved in construction will have come across good and bad PWA surveyors, the good ones know their duties and perform them, the bad ones pander to the demands of the person they think they are working for.

My advice remains, before doing anything outside the Act simply insist that the two surveyors conclude matters as required by the Act and if they can't then appoint the third surveyor to conclude matters for them. You are already paying for two surveyors, the third is still probably cheaper than defending legal action and having the Award in place is overall a better outcome.

If matters do go to a third surveyor you can ask them to consider apportionment of costs and if you can show that your neighbour has been an unnecessary obstacle or that the surveyor has not acted diligently in accordance with the Act you can request their costs plus the third surveyor costs be met by your neighbour, it may not work but the third surveyor does have powers to consider who pays.

If all else fails do as the others have said, start works and see what, if anything the neighbour does. There is every chance they'll do nothing. Unfortunately you'll still pick up the surveyors cost for work done.

HELP - Neighbour dispute over party wall agreement

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