Barry v Minturn

 Case Summary

 

Court:
 House of Lords
Status:
 Not Binding
Current Legislation:
 Party Wall etc. Act 1996, s. 2(2)(b), 7(1)
Historic Legislation:
 London Building Act 1894, s. 88(1), s. 90(3)
Facts:

Barry owned the freehold of 15 Chelsea Embankment, London, SW15. Minturn owned 14 Chelsea Embankment next-door.

At some point in the past a previous owner of No. 14 had added a rear extension, but the party wall of the extension was exposed to the elements.

The wall was damp and allowed water to percolate into her basement. Minturn wanted to undertake repairs to the party wall including the installation of a 2-inch damp proof membrane to Barry’s side of the wall, which would keep the whole wall dry. Barry objected principally on the grounds that the work would cause unnecessary inconvenience to him.

Decision:

Dampness of a wall did not, of itself, amount to a “defect” unless the dampness rendered the wall less effective for the purposes for which it is used or intended to be used.

The previous history of the wall is immaterial for the purposes of the determining whether proposed works would amount to an unnecessary inconvenience. That the original construction might have caused the defect is irrelevant.

The surveyors must look only at the proposed works. If the works can be done in an equally effective way at no or modest extra cost, and this would result in less or no inconvenience or entry on to the adjoining land, then the surveyors ought to award those alternative works.