Party Wall Notice Served In Error

[Adrawk]

I made a mistake in thinking my neighbour owned the adjoining property and got his verbal consent for carrying out excavations for a rear single storey extension. He never mentioned he was a tenant and so I got on with it.

After the trenches were opened the owner, a housing association, phoned me and demanded a party wall notice for the works. In a panic I filed a notice myself that night as the guy on the phone began to threaten injunctions.

Having spoken to a couple of surveyors and had a search online I found most of the answers in that the act is not retrospective but how do I go about rescinding the notice as the works aren't covered.

I am happy to pay for someone to take a survey of the property now and then inspect it again in the near future to see if any damage has occured and of course I will pay for it but I am wondering if I've got myself stuck and now I have to go ahead with the Party Wall Notice I served on Monday night.

Any advice would be greatly appreciate.

 

[John D v2.0]

I think the only way to rescind is to cancel the works that were covered. Since you're saying you don't need one, presumably you've worked out your footings don't go below next door?
So just write again saying the original works that needed a PWA don't exist and the works you are doing are not works needing a notice and crack on.

Obviously even if you don't need an agreement, you will still repair any damage to their property, but you don't need expensive surveyors to prove things before hand.

 

[Adrawk]

I think you've mistaken what I've written. I have already dug the trenches for the foundations. My understanding is because the work has already been completed the party wall act can not be invoked.

Would an injunction under the act stop all construction works or just the works concerning the party wall act?

 

[motorbiking]

There are no penalties for failure to issue notice under the party wall act. However, its not clear what you issued and when.

Did you serve a notice on the tenant in time or did you orally get his approval?

You are basically on the hook for any damages/claims and would need to prove your works didn't damage their property rather than the other way around, which is what would happen if you had issued a notice. I would suggest you photograph as much as possible and cease communication with the housing association.

If on the other hand you served a correct notice on the occupier correctly and he failed to inform, then you might argue that he is their agent and confirmed authority to agree to the notice.

How close are your foundations to theirs? Is this a 3M or 6M notice? or a party wall? You can't retrospectively issue a notice, so depending on how far you have progressed, you either crack on or cease and start the process agian.

 

[John D v2.0]

Well technically correct, but at this stage they can get a court injunction to make you stop work.
So If they say either serve a party wall notice or they'll get an injunction it's probably a good idea to do it their way, unless you think they're bluffing.
However seek legal advice if you prefer to do it another way, you might get away with it

 

[John D v2.0]

Motorbiking there's no such thing as an agent for the pwa, it's your responsibility to get signatures for all owners and leaseholders including joint owners.

Also You are always on the hook for damages, but if you follow the procedure first and get the wall surveyed, then there's less chance of damage (apart from to your wallet) and more chance that it can be resolved amicably and quickly if it happens.

 

[motorbiking]

Their option depend more on what is or has been done. they'd be more likely to go down the tribunal of surveyors route.

 

[^woody^]

As the works to which the notice applies, have begun, the notice does not seem to have been correctly served, and so is most likely invalid.

 

[Adrawk]

There are no penalties for failure to issue notice under the party wall act. However, its not clear what you issued and when.

Did you serve a notice on the tenant in time or did you orally get his approval?

You are basically on the hook for any damages/claims and would need to prove your works didn't damage their property rather than the other way around, which is what would happen if you had issued a notice. I would suggest you photograph as much as possible and cease communication with the housing association.

If on the other hand you served a correct notice on the occupier correctly and he failed to inform, then you might argue that he is their agent and confirmed authority to agree to the notice.

How close are your foundations to theirs? Is this a 3M or 6M notice? or a party wall? You can't retrospectively issue a notice, so depending on how far you have progressed, you either crack on or cease and start the process agian.

I got oral permission about 2-3 months ago, the build was delayed for various reasons. Nothing was ever filed officially.

After the excavations had been completed I then issued the notice, mistakenly, as that's when it transpired the owner was not my neighbour and the owner demanded I file one.

I'm within about 2m of the foundations of their property and I have excavated about 100mm below my existing foundations, which would be a similar depth to next door.

No other works will be concerned with the party wall act, as far as I can see. Nothing is being inserted into the wall and nothing significant is being fixed to the wall.

 

[Adrawk]

As the works to which the notice applies, have begun, the notice does not seem to have been correctly served, and so is most likely invalid.

If they serve an injunction under the party wall act will that prohibit any further work at all or just works relating to the party wall agreement?

I'd rather not get to that but the guy on the phone was quick to throw it at me.

In my letter to him I will detail I am willing to pay for a condition survey to be carried out at the property. That way I'm sure I'm being reasonable.

 

[rssteve]

Just get the trenches filled with concrete asap then the works are complete.

 

[chappers]

What he said ^^^
Get them filled and be done with it. call the guy back/write to him and apologise that you didn't issue a PWA but explain that as the works are completed and there is no provision within the act for retrospective serving nor penalty for non-service, that you are withdrawing the PWA you have sent to him.
As you seem on good terms with the tenant ask him if there has been any damage and if not take pictures of the outside of the property and ask if you can also take pictures of the inside. DO NOT say to the housing association that you are willing to engage surveyors for any purpose.
Get the foundations filled in ASAP leaving them open is creating risk of damage to their property.
If they try for an injunction then it will have to go to court to be implemented you will have your chance to representation and your representation would be that the works relating to the PWA have already been carried out so their is no need for an injunction.
Not wishing to scare you, but I hope there isn't any damage as a friend of mine is still engaged in a 15 year long battle with a housing association for damage he caused to a party wall. They have been awarded sufficient damages and costs that it would probably mean him losing his house if they win all for £6ks worth of damage. There was lots of misrepresentation and mistakes from both parties in this case but my point is that these HAs can be tenacious.

 

[Adrawk]

Thanks chappers, those cautionary tales make me think paying the £1250 to keep them happy would be the most sensible course of action.

I'd rather not get bogged down in litigation for what could be relatively minor costs to repair the works.

 

[motorbiking]

I think you need to be very careful about what you communicate with the HA. On the one hand I agree with
John D v2.0 on cooperation being the best approach. On the other, I can't help thinking he's gathering evidence for a claim.

Would your build work, work with foundations to the same depth - hypothetically speaking? You might for example dispute that your foundations go below his. In which case the PWA doesn't grant him any extra rights. The burden is then on him to prove the damage.

EDIT: how close is this to the property boundary? Are you now creating a party wall?

 

[Adrawk]

Yes, the extension works at the foundation level of the existing house. The existing are around 1100mm deep.

In most places in the excavation I am very close if not at that kind of level. The area closest to the neighbour was dug by hand and as I said earlier I'm within 100mm.

Shall I send a letter stating I never realised this and the PWA doesn't cover the work as the excavations are the same depth?