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Article by Shaw Kelly Barrister at Law


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.




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




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