Party Wall Act 1996 is worthless!

srm1

iamcornholio wrote: »

You enforce the Award if you are party to it.

It's exactly the same as anything else in life, it's up to you to enforce your rights, not sit about expecting others to do it.

Presumably you were briefed at the start of all this, you had opportunity to make enquiries and ask questions. So when things start going awry, to should be thinking about enforcing your rights.

When you saw that builder building without compliance with the Award, you could have got an injunction within a week - and he would be paying all the costs, and he could then not move an inch without breaking the injunction which is more serious than breaching the Award itself

Likewise for the damage caused. You could have (still can) put a claim in to the civil court and got/get your compensation

I'll be blunt here ... its up to you to have sorted this out sooner and got more professional advice sooner, and not waited this long to have a moan on a forum.

You have got the Award in place which you could have enforced. Even with no Award you could have enforced the PW Act. There are still remedies available to you.

The PW Act is not at fault here (although it does have its faults), it's your failure to use it properly which has led to this situation

Surely if the agreed survey can not enforce his own payment there is a fundimental problem?
Surely the CHP officer should have offered advice if any was available.
Surely if RICS can not offer a solution......
Surely my Solicitor should have detected a correct way forward?

It is very easy to offer advice on what should be done & can only hope that you are not placed into this situation.

Perhaps you should also consider a planning enforcement issue for demolition. the list goes on - 2 years.

I respect your ideas regarding the party wall system but do not agree with them.

iamcornholio

The agreed Surveyor can enforce his payment ..... he sues. I'm not sure why you would expect the surveyor to carry on with the work if his fees have not been paid.

Not sure what CHP is, but the RICS has nothing to do with PW matters ... anyone can undertake PW work, and the RICS would only be involved if it was one of their members who has screwed up.

As to your Solicitor, then he would be the perfect one to advise, so why he did not is a matter for you to sort out with him.

If a planning enforcement notice has been served, then that is nothing to do with PW matters. That is a matter between the Council and the owner of the contravening works

teneighty

Sadly, because you did not take up the free professional advice when it was available you have no choice but to pay for professional/legal advice now. This is why the legislation makes the building owner pay all costs so you should not be out of pocket simply to protect your rights and answers panchemlama's earlier question.

I will stick my neck out and make a huge assumption, but it certainly looks like the party wall surveyor did not complete his work and a party wall award was not actually issued. In effect the building work/demolition was therefore done illegally. As Iamcornholio said that would have been the time to get a court injunction to halt work, but that particular horse has well and truly bolted. The courts take a very dim view of flagrant breach of the Act and they would have thrown the book at them and awarded all your costs.

I would suggest that if this is the case, even if he was not paid by the building owner, the surveyor still owed you a duty of care. I would certainly consider submitting a claim against his professional indemnity insurance but without expert advice I wouldn't rate your chances of a successul outcome. You will have to demonstrate that the surveyor had knowledge that the work was likely to proceed without the award in place and failed to advise you to get an injunction.

iamcornholio

teneighty wrote: »

.... even if he was not paid by the building owner, the surveyor still owed you a duty of care. I would certainly consider submitting a claim against his professional indemnity insurance

Normally, there would be a clause written into the Award detailing the payment of fees which is specific and integral to the work done in preparing the Award.

As such, there is no further duty owed as the Surveyor has done the work he was contracted to do (ie prepare the Award) and he owes no duty for further work or involvement.

As such, is is the Building Owner who is in breach of contract (for not paying the fees), and so there is no negligence or claim to be made against the Surveyor

In addition, the Surveyors duty is to the PW Act, and not to the Building or Adjoining owners

srm1

iamcornholio wrote: »

The agreed Surveyor can enforce his payment ..... he sues. I'm not sure why you would expect the surveyor to carry on with the work if his fees have not been paid.

Not sure what CHP is, but the RICS has nothing to do with PW matters ... anyone can undertake PW work, and the RICS would only be involved if it was one of their members who has screwed up.

As to your Solicitor, then he would be the perfect one to advise, so why he did not is a matter for you to sort out with him.

If a planning enforcement notice has been served, then that is nothing to do with PW matters. That is a matter between the Council and the owner of the contravening works

A CHP is a complaints handling proceedure - it is instigated to double check what has been done by one surveyor by one of his golf chums - A complaints handling officer - the next complaints step is RICS CHP.
No-one at any stage could suggest a way forwards.

I'm currently dealing with a new solicitor as the only accuracy of the original one was start time > stop time = £££ without result.

teneighty

I totally agree with what Iamcornholio has said and respect his advice. Poor old SRM1 is certainly between a rock and a hard place and has been left in a terrible position due to his neighbour's apparent illegal activities.

My comment was based on my own assumptions which obviously could be completely wrong.

The fact that the surveyor is supposed to be impartial and his principal duty is to uphold the Act does not, in my humble opinion, preclude him from having a basic duty of care to the building owner and the adjoining owner. But that is just my opinion and I would be the first to admit that I am not an expert.

srm1

iamcornholio wrote: »

Normally, there would be a clause written into the Award detailing the payment of fees which is specific and integral to the work done in preparing the Award.

As such, there is no further duty owed as the Surveyor has done the work he was contracted to do (ie prepare the Award) and he owes no duty for further work or involvement.

As such, is is the Building Owner who is in breach of contract (for not paying the fees), and so there is no negligence or claim to be made against the Surveyor

In addition, the Surveyors duty is to the PW Act, and not to the Building or Adjoining owners

Perhaps there is always a further money making scam?
12. That the said Agreed Surveyor reserve the right to make and issue any further Award or Awards pertinent to this matter that may be necessary, as provided for in the said Act.

This has been taken directly from my award but I have snipped the hourly rates.
Presumably once / if the original fees had been paid - more beer money to be had?

paddy's_mum

srm1 wrote: »

Surely RICS would have suggested any possible method of enforcement if it were at all possible?

This is the bit that bothers me, too.

If my neighbour kicks off on his perfectly within planning law building work and I have to get an injunction to order and/or enforce the PWA, who pays the court and solicitor costs? If an injunction is granted, is there any capacity whatever for my costs to be awarded against my transgressing neighbour?

Just seems a minefield and a money pit to me. I'd rather spend (an average that I've been quoted) £1500 per surveyor (possibly three of them if there is any kind of discord) to produce a nicely finished extension/outbuilding than 'waste' it on professional opinions that they'll wriggle out of if ever push came to shove.

iamcornholio

srm1 wrote: »

Perhaps there is always a further money making scam?
12. That the said Agreed Surveyor reserve the right to make and issue any further Award or Awards pertinent to this matter that may be necessary, as provided for in the said Act.

This has been taken directly from my award but I have snipped the hourly rates.
Presumably once / if the original fees had been paid - more beer money to be had?

No, you're being a bit cynical :whistle:

That clause has to go in to allow further Awards, and thus further protection to the parties if necessary, as work proceeds.

Normally when something unforeseen comes up, or if things change or need to be done differently.

Otherwise there is no provision for the Surveyors to get involved again.

It does not allow the Surveyors to just turn up and prepare another Award willy-nilly