HELP - Neighbour dispute over party wall agreement

casper_g

jackyann wrote: »

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.

In this case I think I'd be less inclined to move - the owner of the neighbouring property is a PITA, but by the sound of it he is a non-resident landlord so it's not like you have to live next to him from day to day.

phil24_7

I would be leaning on the surveyors quite heavily whilst also looking at ways of starting, even if you can't really get going.

Dig footings and get them poured back in quickly, it should take less than a day to do this (depending on the size and what other works need doing). A first row of blocks and you are out of the ground and considered started (A decent planner/building controller may also consider pouring the footings as being started). If you have demolition works (like knocking down a previous extension) then this could well be enough. Talk to your local planning department and/or building control to find out what you need to do.

See if you can get your surveyor to email you confirming that the neighbour is being obstructive regarding the second surveyor etc. This will help should anything ever end up in court.

chappers

MisterBaxter wrote: »

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.

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I think you know my position on the PWA, and that I am quite bullish on the whole matter. But I agree with DG and to a certain degree you have made my point.
I think a without notice injunction would fail here as the OP has done everything within the letter of the PWA, after no response They have taken it that the neighbour has dissented and appointed a surveyor, which has prompted the neighbours to appoint their own. By further inaction it could be said that the neighbour/their surveyor is acting in a vexatious manner by delaying the process.
As you said the two surveyors should be acting independently of the two neighbours and by this point should have appointed a third party. In this situation it would appear that the neighbour and their surveyor are the ones in breach of the PWA.
As the foundations are the only part of the works involving the PWA I too would proceed get them done and get on, these could be completed within two days, assuming that they don't require anything out of the ordinary.
Instruct your builder to be careful and get it over and done with.
Your neighbour won't have any more or any less recourse for damage should any occur and with a simple foundation issue they won't be able to claim for spurious cracking etc as this would be apparent in the structural fabric of the building if it starts to appear within the internal finishes.
The PWA has no bearing on the shared drain issue

kh904

Thanks for everyone's replies, especially Misterbaxter!

As one of the replies has stated, the next door neighbour is a buy to let landlord who doesn't live there.
I don't know why he is being purposely difficult, he likes to throw his weight around. He was being causing problems with his other neighbour who was doing a loft conversion.

It would be in his interest to let us get on with the work as the rear garden is an eyesore which surely is hurting his property value!

Surely if we are digging the foundations that are lower than the neighbour's and is within 3 /5 meters this falls under the party wall act?

MisterBaxter

chappers wrote: »

I think you know my position on the PWA, and that I am quite bullish on the whole matter. But I agree with DG and to a certain degree you have made my point.
I think a without notice injunction would fail here as the OP has done everything within the letter of the PWA, after no response They have taken it that the neighbour has dissented and appointed a surveyor, which has prompted the neighbours to appoint their own. By further inaction it could be said that the neighbour/their surveyor is acting in a vexatious manner by delaying the process.
As you said the two surveyors should be acting independently of the two neighbours and by this point should have appointed a third party. In this situation it would appear that the neighbour and their surveyor are the ones in breach of the PWA.
As the foundations are the only part of the works involving the PWA I too would proceed get them done and get on, these could be completed within two days, assuming that they don't require anything out of the ordinary.
Instruct your builder to be careful and get it over and done with.
Your neighbour won't have any more or any less recourse for damage should any occur and with a simple foundation issue they won't be able to claim for spurious cracking etc as this would be apparent in the structural fabric of the building if it starts to appear within the internal finishes.
The PWA has no bearing on the shared drain issue

Personally I think that the neighbour is trying it on and wouldn't actually go to Court but I still think that they would get the 'without notice injunction' if they were to apply for one on a simple technicality, the only tests that need to be met are:-

1. Does Party Wall Apply?
2. Is an Agreement/Award in place?
3. Have works commenced?

If PWA applies and works have commenced without the Award/Agreement then the Court would really have no choice but to grant the injunction. Where the neighbour and the surveyors would come unstuck is further down the line; their actions could be seen to have contributed to the problem and that could be factored in to the apportionment of costs. The Court would most likely force the Surveyors to conclude matters properly. With this sort of injunction the details come later on as they are designed to stop the works immediately.

As for recourse when it comes to damages take a look for the 'Roadrunner properties' case as it deals with such matters. There was no PWA Award/Agreement, the Adjoining Owner claimed damages and the entire burden of proof to show damage wasn't caused by the Building Owner was placed on the Building Owner, the complaining Adjoining Owner didn't have to show any proof. This goes against normal convention which is based on balance of probability.

This sort of behaviour on the the part of the Surveyors is one of the reasons why the PWA has such a poor reputation. An Adjoining Owner can legitimately albeit unnecessarily delay commencement by responding to notices at the last minute but PWA should not be a barrier to works.

If the surveyors won't conclude matters and won't agree to the appointment of the third surveyor there is little choice but to commence works without there being an Award in place; if the neighbour actually did try it on then there are plenty of other people to point your finger at for failing to do their duties diligently.

Chappers - as for your view on PWA, you are not alone; my only advice would be that if you are in a position where you are advising clients in any sort of professional capacity be mindful that if you give the wrong advice on PWA and your client ends up on the receiving end of legal action their solicitor will be advising them to come after you and your insurance for any costs arising from your advice. Personally I will prepare notices and make it clear to clients what their obligations are and they have to sign to say they understand. If they don't follow PWA then it's all on them and won't be coming back as a claim against my PI.

chappers

I agree with everything you say, however the practicalities sometimes just don't warrant such a long draw out process and I believe that this is such a case, with the proviso that the builder knows what he is doing.
If the foundations are the only thing invoking the PWA, then once in and poured the PWA then become irrelevant.

The PWA was conceived to allow a neighbour to carry out lawful works, but is all too often used now by neighbours to be obstructive.
The main issue here though, I suppose is that the process has already begun.

the whole thing infuriates me when a neighbour is obviously just trying to make their neighbours jump through hoops for the sake of it.

I am currently converting my loft and out of courtesy, I let both of my LL neighbours know what I was planning, I have done quite substantial works for both of them in the past, including a loft conversion for the neighbour in question, at another property he owns.
When I phoned him, he said he wanted a PWA as he had had some problems at a property he owned in London. So again out of courtesy I served him with one. After not hearing from him for 3 weeks, I phoned him to ask if he intended to dissent, his reply was "oh no, I just wanted you to know I would be keeping an eye on you".
He didn't even have the decency to get back to me. It's vexatious attitudes like this that make my blood boil, especially when the only party wall work I have is to block up the non existent fire-break in the loft. All this on the back of the fact that last year he had the back of his house re-pointed and didn't ask to drop scaffolding down onto my side of the fence, covered my back patio in debris and filled my spare room with dust.

blackshirtuk

You could start to dig the foundations on 3 sides of the extension in order to comply with the planning permission timescale.

Then leave the final side, next to the neighbour's side until the PWA has been sorted.

However, I agree with the other posters and would be inclined to just do it! If he doesn't live in the property work could be well on the way by the time he finds out.

kh904

Update;

My parents have heard back from our surveyor - The neighbour/owner is going to sign the party wall agreement. I won't relax until it's actually signed, but so far so good.

It turns out that the previous owner of next door didn't get proper planning permission for their extension (it was a half width extention), and it was flagged up, so I think the current owner didn't want to ruffle anymore feathers and agreed to sign.
The problem is the bathwater waste pipe goes down a small open air drain which is on our side of the boundary. As we are having a full width extension, this drain will be moved out to where the extension stops.
Are we liable to pay to move his exterior waste water pipe?

MisterBaxter

Good news on the agreement.

Technically their waste pipe should never have been allowed to discharge on your side of the boundary but at some point it was done and presumably it has been tolerated. If it is easy enough and cheap enough to relocate the waste as part of your job and your neighbour is OK with you moving it then it may be worth just doing to keep good relations with the neighbour. Obviously let them know what you are doing before you do anything.

How long has their waste been discharging in this way and has it ever been challenged? When you deal with Building Control/Approved Inspector they will expect the waste to be dealt with in a manner that is Building Regs compliant.

Ideally you would want your neighbour to remove the waste and have it discharge wholly on their side of the boundary but this could open up further tensions that may ultimately end up being counterproductive. You may want to start discussions with your neighbour about getting the pipe removed so that it discharges on their side of the boundary but be willing to compromise if it returns the best outcome overall for you.

kh904

The neighbours waste discharge pipe has been using the open air drain ever since he have lived there (20+ years).
I think that is a similar situation for every house on the block shares a drain between them.