Please send any letter of interest and application via the response box.

R2L

The Importance of Rights of Light in Property Development

When it comes to property development, one of the key considerations that often goes overlooked is the impact that new buildings can have on the light that neighboring properties receive. This is where rights of light come into play, and why they are so important in property development.

So, what exactly are rights of light? In essence, they are a legal right that grants a property owner the ability to receive light through a particular window, skylight, or other opening. These rights can be created through various means, such as by prescription, by deed, or by implication.

The importance of rights of light lies in the fact that they can have a significant impact on the value of a property. If a neighboring property is built in such a way that it obstructs the light that a property owner has been enjoying, this can have a detrimental effect on the property’s value. As such, it is important for property developers to take rights of light into account when planning and designing new buildings.

In recent years, the English courts have placed a greater emphasis on the protection of rights of light. In the landmark case of Regan v Paul Properties [2014] EWCA Civ 439, for example, the court held that a property owner could claim damages for loss of light caused by a neighboring development, even if they did not have a legal right to light. This decision has made it more difficult for property developers to ignore the impact of their developments on neighboring properties.

Similarly, in the case of Coventry v Lawrence [2014] UKSC 13, the court held that the acquisition of a right to light through prescription (i.e. by virtue of the fact that light had been enjoyed through a particular opening for a certain period of time) was not an outdated concept. This decision has given greater weight to the importance of established rights of light.

In addition to these cases, there have been a number of other recent decisions that highlight the importance of rights of light. For example, in the case of HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), the court held that a property developer had knowingly interfered with a right to light, and ordered them to pay substantial damages to the affected property owner.

As these cases demonstrate, rights of light are a crucial consideration in property development, and can have significant financial implications for property owners and developers alike. As such, it is essential to seek legal advice on rights of light when planning and designing new developments.

In summary, rights of light are a legal right that grant a property owner the ability to receive light through a particular window, skylight, or other opening. They are a crucial consideration in property development, and recent case law has highlighted their importance in protecting the value of properties. If you are involved in property development, it is essential to seek legal advice on rights of light to ensure that you comply with the law and protect the value of your investments.

Whether a wall is a party wall (as defined) is always a question of fact, dependant on the circumstances. Where a neighbour attaches their wall to yours it may constitute it becoming a party wall eventually if you do not protest. Alternatively, where it replaces a wall, the wall in question may have been a party wall prior to the wall going up. 

If your adjoining owner neighbour has attached their wall or structure (for example a garage or external structure) to your wall without your consent, then that constitutes an ongoing trespass. There is case law to support that view in the case of Seeff v Ho and another [2011] EWCA Civ 186  – that case involved a neighbour attaching a roof to their neighbour’s house without consent and without following the proper party wall procedures.

In the circumstances, it may be prudent to contact us or a party wall surveyor, who will be better placed to advise you on precisely what your neighbour should have done (and didn’t), and what rights you may have now. Please contact us as we may be able to answer your point directly or refer you to a party wall surveyor who can assess the position ‘on the ground’.

Where historical work falling under the jurisdiction of the Party Wall etc. Act 1996 has been conducted it is vital for those conducting a conveyance of residential property to have sight of, and regards to, statutory Notices and either Consents or determined Party Wall Awards in order to effect a smooth and efficient conveyance of land and property.

What is the position however where there is no Award or statutory documentation in place? What difficulties arise? And if difficulties arise how are they to be dealt with by solicitors or licenced conveyancers in transfers of land and property.

In the Law Society’s conveyancing protocol it is a requirement for practitioners to share information, subject to client confidentiality, to ensure efficient management of the property transaction. The process requires transparency in order to recognise the value of an efficient process and the practice of using authorised forms to achieve this process is essential to the good management of cases. It is a modern feature of conveyancing practice for both solicitors and licenced conveyancers that greater consumer awareness means that errors in conveyancing transactions can be a fertile ground for complaints and negligence claims.

When buying a property the onus if on the buyer to satisfy themselves that there are no outstanding issues with the property. The use of the phrase ‘caveat emptor’ or ‘buyer beware’ is still the legal

basis on which the sale and purchase of a home takes place. The emphasis is on the buyer therefore, and his/her advisers, to investigate outstanding issues before the exchange of contracts to purchase.

The seller’s responsibility, if they choose to provide information, is to provide complete and accurate information else the buyer may refuse to complete the purchase or even claim compensation from them.

Surveyors will of course be familiar with the physical inspection as a part of this process that leads through to what hopefully would be a successful purchase for a potential buyer. A survey may elicit the fact that works have been undertaken to a party wall, a loft conversion has been executed or that a neighbouring property has had a basement excavated. These may be noted within the survey report.

Equally, within this process, and on their own part legal practitioners will make enquires of the seller. The most obvious procedural example being the use of the form ‘TA6’, requiring the seller to respond to enquiries set out by the purchaser. Interestingly, the Law Society, in its consultation paper of 19 April 2012, recorded the fact that buyers need not respond to enquiries. It would however, at the least, raise suspicions if such answers were not provided, causing either the sale to fail, falter or require the solicitor or conveyancer to take specific instructions from the lender as to whether they were prepared to proceed in such circumstances.

The Faculty of Party Wall Surveyors, PO Box 86, Rye, East Sussex, TN31 9BN Tel: 01424 883300 Web: http://www.fpws.org.uk E-mail: enq@fpws.org.uk

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Party Wall Surveyor

Winter 2017

Form TA6, or its other equivalents in use such as Con29 (Oyez), raise queries and questions amongst other things as to works undertaken by a seller, notices received and confirmations of works undertaken.

Additionally, there are questions as to boundaries and their features, party wall notices and works carried out pursuant to the same, as well as disputes and complaints over the property or another property nearby and/or any knowledge as to a matter that might lead to a dispute on that property or nearby. There are also questions directed to alterations, planning and building control (for example loft or garage conversion). The seller is also required to reveal any breaches of planning permission or work that does not have all necessary consents.

In the context of the Act it is therefore incumbent upon a seller being a Building Owner, or even an Adjoining Owner to reveal what they know in so far as they are asked. Where a relevant party had either (i) conducted notifiable works pursuant to Notice or an Award, or (ii) conducted notifiable works without serving such Notice and having an Award in place, then in both circumstances the seller would be required to reveal the same information upon a sale of their property to any prospective buyer asking the same. This may well apply equally to a person who is considered to be an ‘Adjoining Owner’ for the purposes of the Act as well as someone considered to be a ‘Building Owner’; catching unexpectedly a person whose neighbour may well have conducted notifiable works under the Act where that neighbour had failed to serve Notice, and/or therefore had failed to obtain Consent or an Award.

In the case where the Act had been followed meticulously the sale of the property is likely to take a much more smoother path (assuming there is no ongoing dispute) for transactional purposes, especially where Notices, Consent(s) forms or Awards are disclosed to the purchaser’s legal advisers at an early stage. However, it is the latter example, where such documentation is missing, where problems may arise for both seller and buyer.

The problems are therefore apparent for both seller and buyer, and it is a problem or complication

shared. Upon completion of the required and requested information (often a ‘TR6’) both parties may face either delay, the seller a reduction in price based upon an element of ‘risk’ or the prospect of a purchaser pulling out of the transaction.

The uncertainty for a party wishing to buy is that they may face having before them a potential or ongoing dispute, the purchase of a property with no formalised paperwork in place (and this can be said for both works conducted at the subject property and works conducted at an adjoining or nearby property also), an issue as to potential latent damage, issues as to ‘retrospective’ Awards as a matter of record, delay in the conveyancing, withdrawal or difficulty with a potential mortgage or funding. These further costs may, ironically, be offset by the buyer demanding a discount.

The importance of having lawful Party Wall documentation in place is therefore paramount, and should be in the minds of those assisting and advising both sellers and buyers. In addition, mortgagors should also be advised as to the position in order to make an informed decision as to funding the purchase. The ability to produce, and in relation to purchasers to view and consider, such documentation should ensure a smooth conveyancing procedure and an efficient sale and purchase of property and land.

Those avoiding the responsibility of having proper paperwork in place are likely to find themselves in some difficulty when a decision is made as to the sale and conveyance of such property. As purchasers, and lawyers, become more alert to the issue of a party wall dispute arising or having arisen, the purchasers or their conveyancing professionals will be well advised to require statutory documentation and information that such disputes have been dealt with in an appropriate manner.

If there is no such statutory documentation, in the form of Notice, Consents or an Award in place purchasers will be, or should be, that much more cautious in any property transaction. This may well result in delay, added costs, or at worst a transaction not proceeding. A mortgage provider may also well be within their rights to pull out if concerns are noted.

In turn buyers may require a discount, in order to negate any potential future risk, or there may have to be guarantees, insurances or an indemnity provided. Protection may be given in the form of a Deed providing financial or other protection for the party purchasing in the event of a future catastrophic issue, such as a basement collapse or issue as to latent damage in a loft conversion. It is therefore the case that where the Act is avoided one who wishes to sell and who would have been considered as a ‘Building Owner’ may well find themselves in difficulty, and at some expense, further down the line when they come to sell a home or property that they own. Somewhat unfortunately, this may also potentially catch an ‘Adjoining Owner’ who knew of works upon a party wall, or who had knowledge of a basement, or other, excavation and who failed to insist on their own rights and safeguards under the Act.

Shaw Kelly

Barrister at Staple Inn Chambers

Article – FPWS Newsletter Summer 2018

Revisiting the Recovery of Professional Fees 

Introduction

Party Wall Surveyors often fall into two categories where recovery of fees are concerned: Those who have found themselves not to have been paid in accordance with the terms of the Award, and those who are yet to find themselves in this position. 

It is an unfortunate fact of life that at some stage a surveyor, acting upon a statutory appointment, will find himself or herself chasing payment for completed work. This may involve many hours of additional time, where time could be spent on ‘actual’ work. In most cases payment will be eventually met – however, it is a fact that many such cases end up before the Courts.

The Proviso within the Award as to Fees

It is common practice to include an explicit term for payment of a surveyor(s) fees within a Party Wall Award, whether acting as an agreed surveyor, for both surveyors, or for the third surveyor’s fees. This may also extend to the fees payable to other specialists, for example structural engineers. The purpose of doing so is to provide for recovery under section 17 of the Party Wall etc. Act 1996 (‘the Act’), as there may be no contract for example between a Building Owner and Adjoining Owner’s Surveyor. The section provides as follows:

‘Any sum payable in pursuance of this Act (otherwise than by way of fine) shall be recoverable summarily as a civil debt.’ 

As we are aware fees, of course, must be reasonable as ‘costs’. These are usually agreed by the surveyors to be included within the Award, or sensibly determined by a third surveyor, paragraphs 7.5 and 7.5.1 of RICS Guidance Note (Party Wall Legislation and Procedure, 6^th edition) provides guidance as to the same. If costs are not reasonable they are subject to challenge, ordinarily by way of appeal, with potential risk against the surveyor if joined and the surveyor’s costs found to be ‘unreasonable’. 

Recovery of Fees – The Magistrates’ Court

As the Faculty’s Guidance Note (23^rd June 2010, Mr Stuart Frame) states, the summary procedure is recognised as the main route of recovery and the Magistrates Court is the forum for such an action, as also confirmed in Farrs Lane Developments Ltd v Bristol Magistrates Court [2016] EWHC 982. 

The Magistrates’ Court is a ‘creature of statute’; relevant powers are conferred by Parliament under the Magistrates’ Court Act 1980. The Magistrates, or District Judge, have the power to make an order on Complaint for the payment of money recoverable summarily as a Civil Debt under section 58 of the MCA 1980. The Court also has the power to award costs (in its discretion) either as against the Defendant, or in his/her favour if the ‘Complaint’ is dismissed. Such costs are to be ‘just and reasonable’.   

The Court also requires there to be a Complaint made to the Court and a Summons issued as against the Defendant(s). This initial procedure, as to the making of a ‘Complaint’, has a 6-month limitation period arising from when the matter of complaint arose under s.127 of the MCA 1980. This period may well commence the first day after the sum claimed becomes payable. There is a fatal procedural difficulty if the date is missed; reliance as to the recovery of owed fees may well thereafter rest in the jurisdiction of the County Court.

For those who have either practiced, or appeared, before the Magistrates Court upon such a complaint being made, it is fair to say that the Act and its procedures are unfamiliar to both Magistrates and the Justices’ clerk(s) who advise within those Courts, despite the efforts of the Faculty (FPWS Guidance Note appendices). What therefore may be thought of as a simple procedure may well result in legal technicalities having to be explained as well as a potential Trial of issues (that may or may not be required or even be procedurally correct). 

There are also practical difficulties in issuing in the Magistrates Court with regards to the question as to what occurs in relation to enforcement if the Defendant(s) does not pay, or if there is an order by way of instalments that results in unacceptable delay in payment or subsequent enforcement issues? If there is no payment or a breach of the terms of payment then enforcement of the Order of the court comes by way of a Warrant of Control for the purpose of recovering the sum under section 76 – and despite a perceived conflict between sections 96 and 92 of the MCA 1980 (not rehearsed), it is apparent that there is no right to seek imprisonment for default. 

The effect of the Magistrates’ Order is then limited, to either payment outright, payment by instalments or through enforcement under effectively through a ‘Warrant of Control’. A Warrant of Control authorises Enforcement Agents to visit the defaulter’s home address in order to either (a) collect money or (b) remove goods in order to sell. As a route to recovery it may be fraught with difficulty in either realisation or it may present procedural difficulties.  

It is of note that arguably the most useful of enforcement method procedures however cannot be utilised when dealing with the Magistrates’ Court. The route known as a ‘Charging Order’ provides a useful remedy where an Order to make payment of sums owed is breached. The remedy is available for our purposes via the County Court under section 1 of the Charging Orders Act 1979; however, it may only follow an Order granted to the Claimant in the County Court jurisdiction.   

Recovery of Fees – The County Court

Although there is the mandatory use of the language within section 17 of the Act (‘shall’) it is not thought that this is intended to exclude the jurisdiction of the County Court in favour of the Magistrates Court, see for example discussion in Party Walls (Law and Practice) 4^th edition (Bickford-Smith, Nicholls & Smith). Indeed, the wording of section 17 does not exclusively cite that a ‘sum payable’ should only proceed by way of the Magistrates’ Court, it is silent as to venue and jurisdiction. 

In support of the above proposition, and despite an examination of the terminology (‘recoverable summarily as a civil debt’) used within the Act, which is quite clearly similar to that used in sections 58 and 150 of the MCA 1980, it is this author’s view that any claim for sums payable are not solely restricted to the Magistrates’ Court but also extend to the County Court by virtue of its inherent power and suitability – notwithstanding the premise that section 16 of the County Court Act 1984 may be read widely for both sides arguing a point under s.16(1)(a) of the same. It is the opinion of this author that the inclusion of the word ‘only’ within section 16(1)(a) of the CCA 1984 (‘…shall only be recoverable summarily;’) allows the County Court jurisdiction to hear such a claim.     

It is therefore open for a potential ‘Claimant’ Party Wall Surveyor, or one who is owed sums under the Act, to bring a claim for payment under what is known as Part 7 of the Civil Procedure Rules (‘CPRs’), or Part 8 of the same. Part 7 of the CPRs provides a procedure where it is expected that the claim may be contested. Equally, Part 8 may be used for example where there is no dispute as to fact, or where the matter concerns a point of law or construction of a document.

It is the opinion of this author that either CPR route could be utilised; especially where the 6-month limitation period of a Magistrates’ Court action has passed. Where an Award has not been challenged by way of an Appeal under s.10(17) of the Act, and where the Award is ‘conclusive’ under a.10(16) (so long as it is intra vires) and not open to challenge, it is to open to use either procedure arguably, but for the purposes of a straight-forward money claim Part 7 and the Money Claims On-Line procedure may be more efficient (‘MCOL’). 

There are advantages however in using the Part 8 procedure in that this procedure (i) does not have the 6- month time limit as in the Magistrates Court – as with a Part 7 claim also (ii) the first hearing of the matter is most likely to be the last hearing (iii) the procedure does not require particulars of claim or a defence and is expeditious (iv) the court is well versed and experienced in dealing with similar, or such, claims (v) experienced Judges are likely to hear the case and decide the matter summarily and (vi) the matter is likely to be determined on the papers before the Court without the requirement to provide oral evidence as to disputes of fact (vii) no counterclaim is usually open to a Defendant. However, judgement in default of a defence cannot be applied for nor can the claim be issued electronically.

The claim would be expected to be settled at the first hearing upon the Court being presented with a completed Form N208 claim form and witness statement from the Claimant. 

The advantages of Part 7 include the following: (i) accessibility is online (ii) an application can be made for judgment online (iii) the procedure is designed for small to mid sized money claims (iii) interest can be claimed (iv) the case may well be ‘hearing free’ (iv) if contested the claim may be allocated to the small claims track, or potentially in the future by an ‘online’ court. However, legal costs may be non-recoverable if allocated to the ‘small-claims’ track and the claim may be subject to an opportunity to dispute and/or be subject to a counterclaim.   

In light of these two competing routes it is more expedient (and appropriate as a claim for money) to issue through the MCOL Part 7 procedure and is the recommended route as an alternative to the Magistrates Court procedure. This route also allows for further methods of ‘Enforcement’, including my own recommended method, which is through a ‘Charging Order’ where payment is not forthcoming after Judgment, or a term of payment has been breached. 

Obtaining a ‘Charging Order’ after Judgment

In a small minority of cases a Court Order may have little effect in securing payment. Enforcement of the Judgment is therefore advisable – a Charging Order is one means of enforcement that is suitable to debt owed by a ‘Building Owner(s)’. 

The advantage of this remedy is twofold. First, it is a charge against property and therefore security; and secondly, payment of the whole sum (with interest) at some stage is almost a certainty. In contrast where a Warrant of Control is concerned there may be uncertainty as to ‘sending in the bailiffs’, or as to investigating the Defendant(s) means. Where we are dealing with a Party Wall Award however there is one thing we have knowledge of – the Defendant(s) as ‘Building Owner’ who has decided not to pay, or cannot pay, holds title of the subject property which is an ‘asset’ or ‘capital’. The building, which may have to be re-mortgaged by the Defendant at some stage as a capital asset, cannot be usually sold without the discharge of an outstanding ‘charge’ upon it. Further, the Claimant creditor may apply for an ‘Order for Sale’ if payment is not forthcoming. As can be seen therefore, the debt is likely to be paid (with interest) and recovery of the debt is almost certain.  

The process itself is a two-stage one, and at the second stage (after the grant of an Interim Charging Order) a District Judge, or Deputy District Judge will make the Order final – the Court does however retain a discretion to decide the Orders sought.  A Charging Order should also be recorded and protected with the Land Registry by way of Notice or Restriction (Practice Guides 19, 29, 63, 76 Land Registry).  Interest will continue to run from date of judgment to final payment of money also. If payment is not made – the ultimate sanction is that the Claimant can apply for an ‘Order for Sale’ the subject building, so as to realise the debt owed.

Conclusion

A failure to make payment of sums due will result in additional work in chasing the debt. However, ultimately it may be at their own cost, whether in the Magistrates’ Court or County Court, particularly where provision for such eventualities has been taken into account in the careful wording of the Award.

As a result of such proceedings (if in the County Court) it is advisable in the event of non-payment of a Judgment debt, or indeed to secure the debt, to obtain a Charging Order. Such an order will have the effect of providing security as well as an incentive for the Defendant(s) to pay the debt with interest.  

Shaw Kelly 

One of my more recent cases involved a matter of a basement conversion in an affluent neighbourhood where the subject matter of such conversions has been contentious to say the least. These are particularly contentious where neighbours are perhaps concerned as to the structural integrity of the immediate locality and indeed understandably their own property’s condition; this is more so where the basements are extensive and where works may also involve associated noise, dust, vibration and interference with the adjoining owners land and dwelling-house. In short the works may become a nuisance in the legal context.

The extent of work in such basement excavations may run into many months and may involve, temporarily at least, associated difficulties with parking restrictions, drilling into ground and noise from excavations, dust and debris, and vibration or shaking of walls. It is understandable therefore that one may expect that affected neighbours and/or adjoining owners may have serious concerns as to the timetable, schedules and method statement when it comes to surveyors detailing proposed works and take an avid interest in the methodology and production of the Award, as may the local authority.

The case in question concerned alleged damage caused as a result of the works undertaken pursuant to the detailed works as set out under the Party Wall Award; some of the concerns I have already identified being the cause of complaint. To this end great significance was given to the Schedule of Condition prepared by the respective surveyors as to the Adjoining Owner’s home. In effect looking at the case on a ‘before’ and ‘after’ basis.

Is damage reasonably foreseeable?

The starting point when looking at a dwelling-house that may be affected by proposed works from a legal perspective may well be the question ‘what damage is reasonably foreseeable from the works that are proposed?’. That, it is suggested from a lawyers viewpoint in terms of the law of tort (and as envisaged by the Act of course when it uses the terms ‘compensation’ and ‘loss’), should be the starting point. It is of course a question the answer to which can ably be assisted by detailed and comprehensive evidence.

However, and many of you will say “thankfully” with some justification, lawyers are not involved with Party Wall cases under the Act from the outset. It is incumbent in such circumstances upon the surveyor(s) who have jurisdiction and are appointed under the Act to do the best for both parties in bringing effect to the Act and fulfilling their own statutory duty to both the Building Owner and Adjoining Owner. In order to do so there must be sufficient evidence in such cases that fully describes, from a point in time immediately before commencement of the works, the condition of the subject buildings.

It is here that the schedule of condition, especially concerning the Adjoining Owner’s premises is a primary source of evidence that may assist either the Adjoining Owner in proving his or her claim that damage has been caused by, for example, vibration, or even the Building Owner in refuting such allegation that say hairline cracking of plasterwork has been the result of excavating below foundations and into the earth.

The Schedule of Condition

A schedule of condition should not be lightly undertaken, it is submitted as evidence and is there to be a record of first instance, a snapshot of the building at a moment in time – produced also with a view to the buildings, character, age and locality. It should be prepared with a view as to what effect the proposed works may well have.

Furthermore, it should be undertaken with a view as to what current disrepair may worsen, or be exacerbated by the works. For arguably, the Building Owner should take the state of the Adjoining Owner’s property as it is, warts n’all. One question that may arise is whether or not it is expedient to even repair current hairline cracks to plaster, and on whose responsibility it falls, if it is envisaged (foreseeable) that vibration may further such damage. Or is it best to take a ‘wait and see’ approach? Either way evidence and a detailed schedule of condition will be vital. It protects both the Building and Adjoining Owners, as well of course the surveyors from appeal or complaint in the event of any dispute.

A cursory sole, or more commonly joint, examination is never enough. My word to the wise is this. Ensure it is detailed. Amongst other things the testing and examination of doors and doorways for movement. A record as to the length, breadth and depth and number of cracks (hairline or not). Marking, and variance in colour of walls and areas should also be recorded. Photographic evidence, and video evidence if appropriate, would also be necessary, if anything to dispel any unfounded disrepair or damage; especially if unnoticed by the Adjoining Owner. As it is often the case that items are only noticed after the advent of excavatory, invasive or potentially major works commencing, an Adjoining Owner may well not realise such damage was already present.

The potential for alternative reasons for future damage should also be explored. For example, if the works coincide with major road-works directly outside the subject premises, which is the likely cause if damage has occurred? This should be measured on the balance of probabilities. And perhaps at such a stage it may well be prudent to instruct lawyers to assist.

Not only should it be agreed between the respective surveyors of course. The Owners should also have input. The Adjoining Owner being invited to validate that this is in fact the condition of their property in order to avoid further dispute. Further, the Building Owner may also wish to comment or opine upon the schedule/survey.

Conclusion

I appreciate that such a survey may in fact entail more charges for the Building Owner; however, it is in their own best interest. A full survey protects both parties, especially where surveyors are dealing with basement conversions. It may well be that a Building Owner in Belgravia may absorb more readily the costs than the Building Owner of Bermondsey. Historically case law had previously distinguished such localities, using these two areas as an example. However, in these more modern times, when all land and property is valuable, especially when it is your own ‘home’, the distinction diminishes. Litigation is arguably also more accessible.

Shaw Kelly

Barrister at Law