When works fall under the remit of the Party Wall Act and a dispute arises, party wall surveyor must be appointed. The role of the party wall surveyor is to check the project and then draw up a party wall agreement which would be served to all of the relevant parties involved. The party wall agreement is a legal document which would identify what type of building work is taking place and any other aspects of the work that the party wall surveyor deems relevant. It can be used in court.
One of the other roles of the Party Wall Surveyor is to prepare a schedule of condition which will detail what the condition of a room, structure or area in proximity to any works (covered by the Party Wall Act). It gives the owners legal protection by describing the existing condition of the visible walls, floors and ceiling finishes and therefore making subsequent claims less likely if damage occurs.
Without reasonable access to your property for the purposes of compiling a Schedule of Condition, you will have great difficulty in substantiating any claims of damage to your property as a Adjoining owner. So, make sure you have a Schedule of Condition carried out prior to the works commencing.
Party Wall Works can cause structural damage to the Adjoining Owners property, often to the roof verge, wall finished, patio, etc. The person doing the building work, under the Party Wall etc. Act 1996 becomes responsible for their builder’s negligence either by compensating the relevant Adjoining Owner with money (known as payment in lieu) or repairing any damage that was caused to the Adjoining Owner’s property as a result of undertaking works covered by the Act.
Damage to the party wall may be caused for various reasons. It may be the case that the damage has happened accidentally, for example as the result of nearby construction work. It may have been a deliberate act or as the result of contractor negligence (for example, intentionally drilling too far into a party wall).
In the case of party wall works related damage, the first option for the adjoining owner is to seek to have the builders who did the work put the damage right, failing which the adjoining owner is at liberty to get their own builder in and ask to be compensated. It is important that an Adjoining Owner does not just quietly get a builder in and start having extensive works done for which they know they will be able to recover costs. You must give the Building Owner the opportunity to rectify the damage or pay a reasonable amount.
The damage could involve anything from cracks in plasterwork to a broken window. One possible remedy would be to ask the contractors who are working for the ‘Building Owner’ to rectify the problem. Whether this would be a good idea would depend on how professional or competent you believe the company or individual in question. It may be better to get an entirely new builder involved and claim the cost of the work from the Building Owner if the party wall surveyors agree. Ordinarily, ‘payment in lieu’ of the Building Owner making good your property is agreed. The amount of money that is paid would either have to be agreed between Owners or by the Party Wall Surveyors involved.
Determining compensation is one of the key issues in the Party Wall Agreement may come about. In the event of payment being requested then the Party Wall Surveyors would make an assessment of the volume of damage and establish a figure based on current day industry guidelines as well as their own experience. Materials and labour costs for the present time could also be a consideration as could the condition of the Adjoining Owners property, prior to the building works, next door.
When the works done under the Party Wall Award are completed, the party wall surveyors will inspect the premises again. They will take the original party wall agreement as well as the schedule of condition into consideration when they inspect the property. They will compare the pre-works inspection to the post-works when looking for damages that may have occurred due to the work described in the Party Wall Award. It is usually not required for the adjoining building owners to take separate legal proceedings, as the process to resolve the dispute for damage is set out in the Party Wall Act.
If damage has actually occurred, then written acknowledgement of this for your insurers of the adjoining property will be required form the party wall surveyor(s). This is usually in the form of an addendum which sets out what has happened and how much compensation is due, which you can enforce in court if the Building Owner does not pay.
In general, the Building Owner who is carrying out the works is liable for making good the damage to an Adjoining Owner, rather than the builder who actually caused the damage, and the Building Owner must usually repair rather than pay compensation, although cases of compensation are becoming more frequent.
Therefore, you should not need insurance as an Adjoining Owner, but you should make sure the contractor is ensured if you are the Building Owner employing them. Make sure you verify their policy is active.
In the event of the Building Owner being held liable, they would pay the Adjoining Owners compensation as awarded by the surveyors in the form of an addendum. The Building Owner would then have to claim that amount from their builder.
In common law, the builder has a duty to have insurance. Party wall surveyors may well attach a clause in the award which says that the building owner should employ a builder that has adequate insurance, but this may not technically be within the power of party wall surveyors as the Act does not cover this aspect. Just make sure you ask the builder for proof of insurance at the point of employing them.
Yes, if the works are risky. Security is not designed to compensate Adjoining Owners in the event of damage occurring. Rather, it is money to make any unfinished works safe. The money is paid by the Building Owner into Escrow in advance of the works being carried out. The party wall surveyors agree this.
