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NEED A RETROPECTIVE PARTY WALL AWARD or AGREEMENT?
From time to time we are approached for advice on what can be done when works have begun (or sometimes have already been completed) but the building owner (the party undertaking the works) has not served the appropriate party wall notice or where notice has been served, but no award has been made.
There are several reasons why this could become an issue and formal attention may be suitable. These can include:
The sale of a property
The resolution of a dispute resulting from the works
To maintain neighbourly relations
The need to satisfy a lender where funding is required
In most cases the failure to follow the correct procedure has no negative consequence for either party and therefore no action is necessary.
NB. It is also important to note that not all such errors/omissions are intentional. Sometimes it could be the result of little or no advice from the building owner's advisers. Whatever the reason, there is no valid excuse for not serving a party wall notice and concluding the party wall process. However, there is usually a practical and straighforward solution.
The Problem People often mention the possibility of a restropsective notice or award. Although we recognise this terminology is widely employed by many party wall surveyors, the Party Wall Act makes no reference to retrospective notices or awards,
Notices, by definition, are prepared prior to the commencement of works to notify of the intention to undertake works. Further, there is a requirement for the inclusion of specific notice periods. If works have already been undertaken, it is not possible to meet those requirements. Therefore, it is not possible to serve a valid notice after works have begun.
From an adjoining owner's perpective, the primary purpose of a first party wall award is to set conditions on the time and manner in which the works are to be undertaken which seek to mitigate the impact of the works on them (and other owners), the property and its occupants. Clearly, setting such conditons would serve no purpose after works have been completed.
Under the Act, where there is dispute between the parties, a further award can be made to settle such a dispute between neighbours usually in relation to a claim for loss or damage. In the absence of the framework provided by the Act, and an agreement between the parties, the parties might find themselves in court. This can be complcated, costly and stressful.
NB. It should be noted that it might be possible to serve notice and make an award (if required) if some of the notifiable works are outstanding. We are happy to offer specific advice in that cirumstance.
The Solution Although, surveyors cannot be appointed under the Act in the normal way where notice has not been served, it is possible for the parties to come to an alternative agreement whereby, moving forwards, disputes can be dealt with as if notices had been served.
Once the agreement is made, the parties can appoint a surveyor, (or two surveyors) to make an award to resolve a dispute between them.
We can assist in preparing such a document.
NB. That document has been succesful in helping in the sale and purchase of properties, the releasing of stage finance payments, simplfying claims for loss and damage and improving neighbourly relations.
FEES From only £500 + VAT Depending on the circumstances, a site visit may be required.