Author Report on Legal Liability - Assignment Example

? Memorandum Zebra Consultancy Services Mr Sidney Vicious. ABC Development Ltd The Applicability of Party Wall Act, etc.1996 October 23, 2013 Dear Mr. Sidney Vicious, This has reference to our discussion on the question of applicability of the Party Wall Act, etc.1996. In this regard, I wish to submit the following for your kind consideration. The Party Wall Act, etc. 1996 offers a structure for preventing and solving disagreements as regard to boundary walls, party walls and digging near adjacent buildings. The enactment of the Party Wall, etc. Act, 1996 states that no landowner can carry out construction or repair work to his property, which might impact an adjacent property without adhering the procedures laid down in the Act. An owner who is willing to initiate construction work stipulated under the Act must serve a notice to adjacent owners about their plan in the mode as prescribed in the Act. If a minor repair work is carried on the party wall, there is no need to serve notice under the Act. The Act covers both residential and commercial properties. (Wood et al, p.205). It is to be noted that adjoining owners may accept or disown what is proposed. When the adjacent owners oppose, the Act offers a way for solving the issues. The procedure set at the Party Wall Act is distinct from getting planning approval or approval under building regulations. Under section 2 of the Act, the owner should serve a notice to the adjacent owner where the proposed construction work is to a subsisting party wall even where the work may not extend away from the centre line of a party wall. It is not necessary that a party wall shall inevitably to have a border line running through its centre line but can stand astride peculiarly over it. A owner should serve a notice on the adjoining owners of a party wall about the intended construction or excavation and where a disagreement arises as regards to a party wall under section 1, or when no written consent has been received within fourteen days from the date of service of notice under section 2, then, issue has to be resolved with the help of a surveyor through a dispute resolution mechanism. The primary aim is that by placing the matters out of the parties’ purview, and assigning them to the independent experts, the Act offers Owners with a magnitude of certainty and minimises the peril of work being prolonged by protracted discussions. The Act places more onus on surveyors as the surveyors are required to comprehend where Act is applicable, and what has to be adhered so as to make sure that a property owner adheres with the Act as the non-adherence will have disastrous outcomes. In Roadrunner case, Court of Appeal held that non-compliance of the Act will not only attract damages for non-adherence but also the Court will not take a lenient view of the failure by a party to adhere with the Act. Thus, this case stresses that a property owner who fails to adhere with the provisions of the Act is accountable for damages suffered by another party in spite of nonexistence of concrete corroboration that repairs carried out by that party really responsible for that damages. (Hannaford & Stephens, 2004, p.xiv). The above Act provides some rights to building owners who intends to carry out some sorts of structural changes to a subsisting party wall in addition to the rights available under common law. In Holbeck Hall Hotel, the Court of Appeal viewed that there is a measured obligation of care or fairness between neighbours to assess the respective privileges and commitments between neighbouring owners. If a building owner must be careful not even start repairing his own side of the party wall without informing the adjacent owners of the proposed repair or construction. (Hannaford & Stephens, 2004, p.xiii). It is to be noted that though the Act does not make it compulsory to serve a notice on the adjacent owners, but adjoining owners can prevent the construction work through a court injection or through other legal means. Further, it is to be noted that an adjacent owner cannot prevent any carrying on the rights accorded to a site owner by the Act, but the neighbours may manipulate how and at what times the construction work can be carried on. Further, the above Act declares that an owner should not create unwanted problems to the neighbours. Under the section 8 of the Act, an owner has many privileges to have access neighbouring properties for fortifying foundations or to carryout repairs but owes some duty to adjacent owners like issuing of notice as regards to Party Wall issues with stipulated notice periods, making good the damages caused from at his own expense and any payment to the surveyor who has been employed by adjacent owners. The above Act requires the Building Owner to offer temporary safeguard or protection for neighbouring property and buildings wherever needed. Further, the owner is accountable for setting right any damages due to the construction work or should compensate the neighbours the loss sustained by them during such construction or demolition or repair. The above Act offers surveyors the authority to evaluate any disputes that happened between neighbouring owners which can be appealable to the County Court. The Act also requires the surveyors to find a solution to the dispute and to make an award within the ambit of the surveyor’s authority as the surveyor’s award will be held valid only if it falls within the authority of the surveyor. Hence, the surveyors are required to have a systematic knowledge of which issues are falls within their authority so as to prevent any probable expensive and time-consuming disputes as the legitimacy of his award. (Hannaford & Stephens, 2004, p.xv). Further, there should be proper service notice by the Owner of the property under this Act as it requires proper content, and it should be served within proper timing and the details of the parties on whom such notice has to be served. Any lapses in this area may be grave as there had been many numbers of decided cases on this subject. (Hannaford & Stephens, 2004, p. xv). In the present case, by employing the provision of the section 3(3) (a), ABC Development Ltd can avoid the service of notice to the neighbours by entering into an informal agreement with the 50 adjoining owners by inserting exclusionary clauses. One can exclude the applicability of Party Wall Act by entering an agreement between parties, which excludes the service of originating notice, and also it saves time and cost. If the notice has already been issued, then agreement can be signed between the parties not to engage the service of a surveyor by detailing the conduct and the nature of the work in the agreement so entered. If the construction or repair work has been already commenced in contravention of the Act, the parties are free to regularise the scenario by consenting on the backward-looking operation of the statutory structure. However, the Act is silent on in the case of adjacent excavations and line of junction works, whether parties have analogues rights to exclude the statutory provisions through an informal agreement. (Chynoweth, 2004, p.1). Thus, ABC Development Ltd can enter into informal agreement with all the 50 adjacent owners to exclude the service of notice and to agree the terms and conditions pertaining to construction or repair which is not prohibited by law. It is to be noted that the section 3(3) (a) exclusion clause cannot be used to avoid statutory obligations as held in Stevens v Gourley 1, where it was observed that a contract entered in infringement of the Metropolitan Building Act , 1855 in which the party wall code first introduced was void on the footing of illegality. If there exists any future dispute between the parties even after signing of informal agreement, it can still be referred to a surveyor under section 10(1) of the Act and this provision can be added in the informal agreement itself. In Adams v Marylebone Borough Council, construction works were carried out without servicing of an originating notice were stopped by injunction and for the losses sustained by the adjacent owner, damages were awarded. It is to be noted that the rule laid down in Wheeldon v Burrows emphasises that a buyer of a apartment is to enjoy the easements that he anticipated to enjoy on inspecting the land when it is apparent that there exists a quasi-easement, and on the presumption that he enjoy the advantage of such a privilege if he purchased that apartment. However, the rule in Wheeldon v Burrows is not applicable where the quasi-servient tenement is sold and if the quasi-dominant tenement is held back. Thus, if the ABC Ltd desires to reserve easements for its tenant’s benefits, conveyance deed should expressly should mention the same without fail. (Kodilinye ,2010,p.147). ABC Developments Ltd should restrict its liability by inserting appropriate clauses in conveyance deed as regards to potential legal liabilities by ABC or XYZ to purchasers, adjoining owners or others, arising out of the proposed development or the subsequent sale of the units. Conveyance deed should expressly state that the sale contract includes the whole of the parties’ agreement and it should restrict the amount of the damages in case if a tenant or buyer can be made accountable if in the case of loss suffered by the neighbours under party wall act or loss due to easement rights of its neighbours so that buyers of the apartments may not witness legal trap in the future. Further, ABC Development should include a clause restricting the quantum of damages that ABC or XYZ would be held accountable for, and it should contain exclusionary clauses there by exempting some reliefs that would otherwise be available to the party that is not in violation or breach. In British Gas v. Accenture, there existed a clause that exempted the accountability for indirect damages and loss of profits and due to defective service provided by the defendant, it was alleged to pay damages to the plaintiff, Centrica which was a subsidiary of the Plaintiff. It was found by the Court of Appeal that the losses suffered were neither indirect losses nor loss of profits and observed that if the plaintiff was to be regarded to have given up its privilege to claim for damages, it should be expressly stated in clear language in the contract by detailing that specific activities would be exempted from claiming of damages. (Kemp, 2013, p.163). The chief statutory provisions administering unfair footing on exclusion clauses is the Unfair Terms in Consumer’s Contract Regulations 1999 and the Unfair Contract Terms Act 1977(UCTA). The above Act offers safeguard against tort negligence and in case of breach of contract. The following elements have to be taken into consideration, whether proposed exclusion clause is just and fair which include: The fairness of negotiating muscle between the parties. Whether such exclusion is rational and just. (Card, Murdoch & Murdoch, 2011, p.126). Thus, ABC should be careful in using exclusion clauses and see that it falls within the above parameters. As per English law, land owners possess the airspace right above his land except it is expressly exempted from the transfer or lease to him. Hence, if a site developer or his construction contractor should be more careful if he permits a tower crane jib to swing across land possessed by other individuals. Through an injection, an adjacent owner may stop such a trespass of the tower crane jib to oscillate on the land possessed by adjacent owners. Thus, either ABC or XYZ should obtain prior permission or licence from the adjoining owners to permit their crane jib to swing around their atmosphere else the neighbours may obstruct the construction work. (Moore, 2011). In Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd, when Berkeley’s crane over sailed on the plaintiff’s land, it was held that it amounted to an intrusion and held that it was not necessary to demonstrate damage to get an injunction for intrusion. In Woolerton and Wilson v Richard Costain (1970), the plaintiff declined to grant permission to trespass despite huge compensation and though, injection was sanctioned and later it was vacated as no damage was proved due to trespass. A licence to trespass should cover various elements like period during which a crane may oversail, the elevation at which it can oscillate and length of the licence. It is to be noted that some contractors circumvent this provision by employing the jib as advertising space, but it is restrained by both the title deeds or by legislation. Fortunately, the Party Wall Act stipulates no damages for non-adherence and if the works already completed, the affected neighbours cannot claim any damages. In case of unauthorised extension, the courts may pass order to remove the extension that is built without neighbour’s consent. Recommendations I would recommend the following to find a solution to issues: It is to be noted that though the Act does not make it compulsory to serve a notice on the adjacent owners, but adjoining owners can prevent the construction work through a court injection or through other legal means. In the present case, by employing the provision of the section 3(3) (a), ABC Development Ltd can avoid the service of notice to the neighbours by entering into an informal agreement with the 50 adjoining owners by inserting exclusionary clauses. One can exclude the applicability of Party Wall Act by entering an agreement between parties, which excludes the service of originating notice, and also it saves time and cost. Thus, ABC Development Ltd can enter into informal agreement with all the 50 adjacent owners to exclude the service of notice and to agree the terms and conditions pertaining to construction or repair which is not prohibited by law. Conveyance deed should expressly state that the sale contract includes the whole of the parties’ agreement and it should restrict the amount of the damages in case if a tenant or buyer can be made accountable if in the case of loss suffered by the neighbours under party wall act or loss due to easement rights of its neighbours so that buyers of the apartments may not witness legal trap in the future. ABC Development should include a clause restricting the quantum of damages that ABC or XYZ would be held accountable for, and it should contain exclusionary clauses there by exempting some reliefs that would otherwise be available to the party that is not in violation or breach. As held in British Gas v. Accenture, ABC Development Ltd should express in clear language in the contract by detailing that specific activities that would be exempted from claiming of damages. ABC Development Ltd should avoid exclusion clauses in contracts which is restricted in the Unfair Terms in Consumer’s Contract Regulations 1999 and in the Unfair Contract Terms Act 1977(UCTA). ABC or XYZ should obtain prior permission or licence from the adjoining owners to permit their crane jib to swing around their atmosphere The apartment sale deed should contain an exclusion of implied rights clause where it has to be specifically mention that the sale deed does not bestow upon the buyer any privileges or rights over other properties excluding as expressly made out in the sale deed or the rule made in Wheeldon v Burrows . XYZ Ltd can circumvent oversailing of crane jib provision by employing the jib as advertising space if there is an opposition by adjacent owners to carry out its construction work. References Card R, Murdoch J & Murdoch S. (2011). Real Estate Management Law. Oxford: Oxford University Press. Hannaford, S & Stephens, J. (2004). Party Walls. New York: RICS. Books. Kemp, T. (2013). Deal Makers: How Intelligent Use of Contract can Help You to Sell More. London: Ecademy Press. Kodilinye, G. (2010). Commonwealth Caribbean Property Law. New York: Taylor & Francis. Moore, P. (2011). Oversailing: What is it and why is it a Concern for Developers? Retrieved from http://www.lexology.com/library/detail.aspx?g=020395ad-5aee-4ab9-af2b-d05fa568c3c6 Wood D, Chynoweth P, Adshead & Mason. (2010).Law & the Built Environment, London: John Wiley & Sons. Read More