Raising an Injunction (Stopping Next Doors Property Ext'n)
Discussion
Hi,
Following on from the following post in Home, Gardens and DIY:
https://www.pistonheads.com/gassing/topic.asp?t=17...
My parent’s next door neighbour's have started an extension which should be covered under the Party Wall Act but no notices have been served. It appears that piling might be required which might have a detrimental impact on their property. When my parents have spoken to next door then are challenging that the Party Wall Act applies even though 2 separate Party Wall surveyors have intimated to me that it definitely does
Mine / my parents concern is that works start which could have a detrimental effect on their foundations – obviously these need to be stopped until a surveyor can agree what the best course of action is to maintain the integrity of my parent’s house. I want to plan for the worst case scenario, which might never happen, so my questions are:
1. How quickly can an injunction be raised to stop their development;
2. What are the likely costs involved;
3. Can reasonable costs in raising the injunction be claimed from next door given they haven’t followed the Party Wall Act; and
4. What information will need to be supplied to get the injunction raised
Thanks for any help on this
Following on from the following post in Home, Gardens and DIY:
https://www.pistonheads.com/gassing/topic.asp?t=17...
My parent’s next door neighbour's have started an extension which should be covered under the Party Wall Act but no notices have been served. It appears that piling might be required which might have a detrimental impact on their property. When my parents have spoken to next door then are challenging that the Party Wall Act applies even though 2 separate Party Wall surveyors have intimated to me that it definitely does
Mine / my parents concern is that works start which could have a detrimental effect on their foundations – obviously these need to be stopped until a surveyor can agree what the best course of action is to maintain the integrity of my parent’s house. I want to plan for the worst case scenario, which might never happen, so my questions are:
1. How quickly can an injunction be raised to stop their development;
2. What are the likely costs involved;
3. Can reasonable costs in raising the injunction be claimed from next door given they haven’t followed the Party Wall Act; and
4. What information will need to be supplied to get the injunction raised
Thanks for any help on this
paintman said:
What specialist legal advice have your parents taken in regard to this matter and what action has been taken/recommended as a result?
Spoken to Party Wall surveyors who have suggest they try to get the neighbour to follow the Party Wall Act - this is what they are trying to do. Surveyor has said that if they fail to follow Act and start to carry out work, then injunction is typically the only action to get them to stop and follow the correct Part Wall Act procedureI'm trying to understand what the worst case scenario might be, so no legal advice has been sought at this point as they may follow the Act but I would guess it 50/50 at the moment based on conversations
All the Party wall act does is protect the developer from a poorer position. The developer is liable to the same extent irrespective of following the party wall act.
The survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
The survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
If it's sufficiently urgent, an injunction can be sought initially on what's known as a without notice basis (i.e. without the defendant present) but your parents will have to show that there's an immediate urgency e.g. work about to commence imminently with a real risk of damage to their property if it isn't restrained. An on notice application - which in itself can in principle be done on reasonably short notice, of a few days - would be the norm.
Cost to obtain an interim injunction? Several thousand pounds - how many depends on how much evidence is required in support. Budget for not only solicitors' costs but also a barrister to make the application to the judge.
Who bears those costs? Whoever ultimately "wins" the litigation - costs almost always follow the event. An interim injunction is just that - an interim remedy pending the substantive hearing of the claim, which may well be months down the line. A costs order is only ever as good as the ability of the paying party to meet it - although if the neighbours own their own property, there's always the possibility of securing it by way of charging order.
Your parents need to urgently seek advice. A solicitor's letter threatening an injunction unless voluntary undertakings are given as a matter of urgency may do the job, if the neighbours see that they're serious.
Get them to check their home contents insurance to see whether it includes legal expenses insurance.
Cost to obtain an interim injunction? Several thousand pounds - how many depends on how much evidence is required in support. Budget for not only solicitors' costs but also a barrister to make the application to the judge.
Who bears those costs? Whoever ultimately "wins" the litigation - costs almost always follow the event. An interim injunction is just that - an interim remedy pending the substantive hearing of the claim, which may well be months down the line. A costs order is only ever as good as the ability of the paying party to meet it - although if the neighbours own their own property, there's always the possibility of securing it by way of charging order.
Your parents need to urgently seek advice. A solicitor's letter threatening an injunction unless voluntary undertakings are given as a matter of urgency may do the job, if the neighbours see that they're serious.
Get them to check their home contents insurance to see whether it includes legal expenses insurance.
Fish said:
All the Party wall act does is protect the developer from a poorer position. The developer is liable to the same extent irrespective of following the party wall act.
The survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
I don’t believe this is correctThe survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
The party wall act ensures surveyors are appointed to minimise potential damage to a property through ensuring works are carried out using the optimum methodology to minimise damage. It’s not a case of the contractor does what they want to get the job done. The surveyors agree how the job should be completed. Eg a raft rather than piling which may be more expensive but that’s the way it goes.
I also believe liability lies with the neighbour in this case if things go wrong where as if the party wall act is followed it’s with the surveyor. I’m not 100% on this but it’s my interpretation
Lurking Lawyer said:
If it's sufficiently urgent, an injunction can be sought initially on what's known as a without notice basis (i.e. without the defendant present) but your parents will have to show that there's an immediate urgency e.g. work about to commence imminently with a real risk of damage to their property if it isn't restrained. An on notice application - which in itself can in principle be done on reasonably short notice, of a few days - would be the norm.
Cost to obtain an interim injunction? Several thousand pounds - how many depends on how much evidence is required in support. Budget for not only solicitors' costs but also a barrister to make the application to the judge.
Who bears those costs? Whoever ultimately "wins" the litigation - costs almost always follow the event. An interim injunction is just that - an interim remedy pending the substantive hearing of the claim, which may well be months down the line. A costs order is only ever as good as the ability of the paying party to meet it - although if the neighbours own their own property, there's always the possibility of securing it by way of charging order.
Your parents need to urgently seek advice. A solicitor's letter threatening an injunction unless voluntary undertakings are given as a matter of urgency may do the job, if the neighbours see that they're serious.
Get them to check their home contents insurance to see whether it includes legal expenses insurance.
Thanks for thisCost to obtain an interim injunction? Several thousand pounds - how many depends on how much evidence is required in support. Budget for not only solicitors' costs but also a barrister to make the application to the judge.
Who bears those costs? Whoever ultimately "wins" the litigation - costs almost always follow the event. An interim injunction is just that - an interim remedy pending the substantive hearing of the claim, which may well be months down the line. A costs order is only ever as good as the ability of the paying party to meet it - although if the neighbours own their own property, there's always the possibility of securing it by way of charging order.
Your parents need to urgently seek advice. A solicitor's letter threatening an injunction unless voluntary undertakings are given as a matter of urgency may do the job, if the neighbours see that they're serious.
Get them to check their home contents insurance to see whether it includes legal expenses insurance.
Things are still at the amicable stage so I don’t think my parents want to involve solicitors at this juncture but I wanted to understand if things turn sour or contractors turn up tomorrow what their next move needs to be.
It sounds like an injunction is the next step and can be raised quickly.
I will ask them to check their home insurance for legal cover.
Thanks for the advice - appreciated.
dogz said:
Fish said:
All the Party wall act does is protect the developer from a poorer position. The developer is liable to the same extent irrespective of following the party wall act.
The survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
I don’t believe this is correctThe survey before is essentially a de laps survey then there is another after the works to ensure any damage etc is identified..
The Party wall act just formalises the act of determining any damage form the works.
It actually protects the developer from false claims about damage..
The party wall act ensures surveyors are appointed to minimise potential damage to a property through ensuring works are carried out using the optimum methodology to minimise damage. It’s not a case of the contractor does what they want to get the job done. The surveyors agree how the job should be completed. Eg a raft rather than piling which may be more expensive but that’s the way it goes.
I also believe liability lies with the neighbour in this case if things go wrong where as if the party wall act is followed it’s with the surveyor. I’m not 100% on this but it’s my interpretation
Once work is complete there is a re visit and assuming no damage it is then signed off.
As a developer if I went ahead without it and the neighbour goes you caused this damage I then can't prove I didn't and woudl likely lose. Assuming it was being done correctly under Party wall it woudl all be documented and clear cut.
As regards costs... it is always me paying whether I caused damage or not. If I don't use Party wall I pay, if I have used Party wall and cause damage I pay..
I also am not aware that they other party can in anyway prescribe how I carry out works on the development...
That said it si a while so I maybe slightly out of touch now...
OP, to add to what Lurking Lawyer said above, you should be under no illusion about the cost or difficulty of litigation. An application for an injunction would easily cost five figures, and to obtain an interim injunction you would have to promise to pay any damages caused to the opposing party if it later turns out that an injunction should not have been granted. You would not usually go from amicable discussions to the grant of an injunction in one quick and easy step. The successful party can expect to recover most but not all of their legal costs from the other party, assuming that the party has the funds to pay such costs, but initial expenditure would be high.
A note on terminology: You can apply for an injunction and a Court can grant an injunction. No one "raises an injunction". See also "taking out an injunction", a more common example of inaccurate terminology.
A note on terminology: You can apply for an injunction and a Court can grant an injunction. No one "raises an injunction". See also "taking out an injunction", a more common example of inaccurate terminology.
As a Surveyor who does Party Wall work, I'll add a few points of details.
It sounds as though the work to excavate the foundations would be work in pursuant of the Party Wall Act therefore notice should be served by the person wishing to undertake the work under section 6 of the Act. That notice requires the Adjoining or Neighbouring Owner to consent to the work. If they don’t consent, then each party is required to appoint Surveyors or agree upon an Agreed Surveyor. The Surveyors role is to resolve the dispute between the parties.
The Surveyors don’t usually design the foundation unless they are also working as a designer.
Piled foundations may not necessarily be detriment to the neighbour’s property, it depends upon the type of piled foundation they want to use. If very close to the neighbour’s property, then a bored or augured pile might be best considered.
If the work starts without notice being served, then the neighbour can apply for and in all, but exceptional circumstances would be granted an injunction to stop the work. They would then be required to follow the Party Wall Procedures. It won’t stop the work in perpetuity because I assume the extension has legal Planning permission and will have Building Regs. Cost for an injunction about 4k. This will be mostly lawyers’ fees.
To apply for one use the various forms available online. You would have to demonstrate they have failed to comply with the Act, the work falls within the Act etc. Fairly easy to do with a few drawings. Better still appoint a good commercial lawyer to do it for you.
I would however suggest in the strongest terms that the parties try and resolve this without resorting to any legal means. Both parties will continue to live next to each other after the work and if either wants to sell their house they will be required to declare the action to any prospective buyer.
Most builders still, nearly 22 years after the Party Wall Act came into force outside London don’t understand it, most solicitors don’t understand it unless they specialise or are London based. Best solution would be for everyone to talk to each other explain they don’t want to interfere they just want to protect themselves from any immediate damage to their property or future damage.
To the person who asked what is the point of the Act? The Act ensures one party can exercise their rights to build within their own boundaries but close to or on the boundary whilst fulfilling obligations to the owners of those neighbouring property. It is much easier and cheaper for the two Surveyors to agree on any damages or repairs than for one party to have to go through the civil courts to get compensation.
There are some nuances and points of detail I haven’t mentioned in the very brief summary above but if in doubt get a good local Party Wall Surveyor on board to the best advice.
It sounds as though the work to excavate the foundations would be work in pursuant of the Party Wall Act therefore notice should be served by the person wishing to undertake the work under section 6 of the Act. That notice requires the Adjoining or Neighbouring Owner to consent to the work. If they don’t consent, then each party is required to appoint Surveyors or agree upon an Agreed Surveyor. The Surveyors role is to resolve the dispute between the parties.
The Surveyors don’t usually design the foundation unless they are also working as a designer.
Piled foundations may not necessarily be detriment to the neighbour’s property, it depends upon the type of piled foundation they want to use. If very close to the neighbour’s property, then a bored or augured pile might be best considered.
If the work starts without notice being served, then the neighbour can apply for and in all, but exceptional circumstances would be granted an injunction to stop the work. They would then be required to follow the Party Wall Procedures. It won’t stop the work in perpetuity because I assume the extension has legal Planning permission and will have Building Regs. Cost for an injunction about 4k. This will be mostly lawyers’ fees.
To apply for one use the various forms available online. You would have to demonstrate they have failed to comply with the Act, the work falls within the Act etc. Fairly easy to do with a few drawings. Better still appoint a good commercial lawyer to do it for you.
I would however suggest in the strongest terms that the parties try and resolve this without resorting to any legal means. Both parties will continue to live next to each other after the work and if either wants to sell their house they will be required to declare the action to any prospective buyer.
Most builders still, nearly 22 years after the Party Wall Act came into force outside London don’t understand it, most solicitors don’t understand it unless they specialise or are London based. Best solution would be for everyone to talk to each other explain they don’t want to interfere they just want to protect themselves from any immediate damage to their property or future damage.
To the person who asked what is the point of the Act? The Act ensures one party can exercise their rights to build within their own boundaries but close to or on the boundary whilst fulfilling obligations to the owners of those neighbouring property. It is much easier and cheaper for the two Surveyors to agree on any damages or repairs than for one party to have to go through the civil courts to get compensation.
There are some nuances and points of detail I haven’t mentioned in the very brief summary above but if in doubt get a good local Party Wall Surveyor on board to the best advice.
laterontoday said:
The Act ensures one party can exercise their rights to build within their own boundaries but close to or on the boundary whilst fulfilling obligations to the owners of those neighbouring property.
Exactly - by using the act it is the developer who is better protected. Without the act, the neighbour has a lower threshold to prove damage caused. The act has no impact on design, so in some respects the neighbour potentially would have an easier route to proving damage and damages recovery if the act is not used.Edited by mr rusty on Friday 11th January 17:31
laterontoday said:
...Cost for an injunction about 4k. This will be mostly lawyers’ fees.
To apply for one use the various forms available online. ...
OP, take surveyor advice from surveyors, but not legal advice. The estimate of costs is too low, and you won't get an injunction by filling in a form from the internet. To apply for one use the various forms available online. ...
E36GUY said:
The contractor has deemed piling neccessary?
Isn't this the domain of the Building Regs person?
No it would be the consulting engineers / foundation or temporary works design engineers who calculate and spec what's required.Isn't this the domain of the Building Regs person?
Then it's down to building regs approval.
Project I was on this week also involved trial hole excavation to determine the type and dimensions of existing foundations.
Plus full drainage survey.
dogz said:
I don’t believe this is correct
The party wall act ensures surveyors are appointed to minimise potential damage to a property through ensuring works are carried out using the optimum methodology to minimise damage. It’s not a case of the contractor does what they want to get the job done. The surveyors agree how the job should be completed. Eg a raft rather than piling which may be more expensive but that’s the way it goes.
I also believe liability lies with the neighbour in this case if things go wrong where as if the party wall act is followed it’s with the surveyor. I’m not 100% on this but it’s my interpretation
It's not correct. Suggest that, at this stage, you avoid well meaning 'bloke down the pub' level advice.The party wall act ensures surveyors are appointed to minimise potential damage to a property through ensuring works are carried out using the optimum methodology to minimise damage. It’s not a case of the contractor does what they want to get the job done. The surveyors agree how the job should be completed. Eg a raft rather than piling which may be more expensive but that’s the way it goes.
I also believe liability lies with the neighbour in this case if things go wrong where as if the party wall act is followed it’s with the surveyor. I’m not 100% on this but it’s my interpretation
Have you appointed a party wall surveyor and have they yet had contact with the developing party?
In nearly thirty years of working in party wall matters, injunctions are very rare.
Feel free to pm me if you wish.
Edited to add; I have just read Laterontoday's post which contains excellent and entirely accurate advice.
Edited by ClaphamGT3 on Saturday 12th January 10:32
Lurking Lawyer said:
If it's sufficiently urgent, an injunction can be sought initially on what's known as a without notice basis ...
Urgency is not a proper basis for not giving notice of an application. Urgency can justify short notice, but an additional factor (such as the giving of notice defeating the object of the application) is needed to justify giving no notice at all.Breadvan72 said:
Urgency is not a proper basis for not giving notice of an application. Urgency can justify short notice, but an additional factor (such as the giving of notice defeating the object of the application) is needed to justify giving no notice at all.
Fair comment, BV. I over-simplified in the interests of brevity and trying to keep it simple, and should have distinguished between short notice and no notice. The point I was making was really no more than relief could in principle be sought on short notice - but it's a fair cop, guv 
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