Yamin v Edwards, 28th November 2019

Party walls; validity of award; appointment of surveyors; oral agreement

Summary: Building owners failed in their attempt to set aside an award made by surveyors appointed after notifiable works complete, and in the absence of a party wall notice

Facts:

The Yamins wanted to carry out (1) a loft conversion, and (2) a rear extension of their house. In July 2014 they spoke to their neighbours, the Edwards, about the loft conversion, but not the rear extension. Some photos were taken to record the state of the party wall in the Edwards’ loft.

At the end of July 2014 the Yamins also applied for planning permission for the rear extension, which was granted on 24 September 2014.

In the meantime the loft conversion works went ahead and were completed in December 2014, with no damage being caused to the Edwards’ property.

In June 2015, and having given no more notice than orally telling the Edwards that they were about to start works, the Yamins commenced their extension works. By July 2015 the Edwards were expressing their unhappiness about this, and appointed a party wall surveyor to act for them on 31 July 2015, by which stage the extension works were completed save for some rendering on the Edwards’ side of the new extension wall.

The Yamins refused to engage with the Edwards’ survyeor, or to appoint a surveyor, and so the Edwards’ party wall surveyor appointed one on their behalf under section 10(4) of the Act.

Some considerable time later, after the involvement of solicitors failed to resolve matters, the two surveyors made an award which provided for the Yamins to pay £2,700 in compensation to the Edwards, £2,500 plus VAT for the Edwards’ surveyor’s fees, and £3435.70 plus VAT for the Yamin’s surveyor.

The award was not appealed, and the surveyors then sought to enforce the same in the magistrates. The Yamins issued proceedings in the County Court for a declaration that the award was invalid.

The Decision:

HHJ Parfitt dismissed the Yamin’s claim. Although it had been argued that the Edwards had waived their right to rely on the Act, the judge’s finding that there had been no discussion in July 2014 about the rear extension was suffiicient to defeat that argument without more.

The Yamins also argued that the surveyors were not validly appointed because the works were all but complete. This argument too was dismissed out of hand, the court referring to the case of Rodriguez v Sokal

Finally, the Yamins argued that the surveyor who had been appointed on their behalf was not impartial. However, in light of the clear evidence that he had attempted to obtain information and input from the Yamins, but without success, this argument too was rejected.

Comment:

This case is an interesting and rare example of a case in which surveyors were appointed, and an award made and upheld in the absence of any party wall notice being served. However, this case can hardly be said to fully explore or definitively determine the extent of the surveyors’ jurisdiction under section 10 in the absence of party wall notices. The issue will no doubt arise before the courts again.

A full copy of the judgment can be found here