Loost v Kremer

Case Summary

 

Court:
 West London County Court
Status:
 Non-Binding
Current Legislation:
 Party Wall etc. Act 1996, s. 10, s. 20,
Historic Legislation:
 London Building Act 1930, s. 5, London Building Act (Amendment) Act 1939, s. 44
Facts:

Kremer owned the leasehold of the top flat at 37 Upper Addison Gardens, London.  Mrs Bartholomew owned the freehold. Mr and Mrs Loost owned the whole freehold of the adjoining no. 36.

Kremer wanted to convert the loft space above his flat. He obtained a licence for the works from his landlord Mrs Bartholomew as well as a deed of variation of his lease bringing the party wall into his demise.  He then served a party structure notice.

Mr and Mrs Loost objected on the basis that:-

(a) The notice was invalid as it had only been served by Mr Kremer when it should also have been served on behalf of Mrs Bartholomew, as she was also a building owner

(b) That the deed of variation was a sham, and that Mr Kremer did not really have any interest in the party wall;

(c) That the appointment of Mr Kremer’s project architect as his party wall surveyor was not valid, as there was a conflict of interest between those two roles.

These issues were referred to the third surveyor, who determined them in favour of Mr Kremer. Mrs and Mrs Loost appealed.

In addition to the above issues, Mr and Mrs Loost also argued that the third surveyor had no jurisdiction to deal with the above three issues as they were matters of law, and we the sole jurisdiction of the Courts.

Decision:

 Mr and Mrs Loost’s appeal was dismissed

On the first issue, Mrs Bartholomew was not a building owner within the meaning of the Act.  She was not undertaking the construction work herself, and the mere fact that she granted the licence and deed did not mean that she was ”desirous” of the work within the relevant definition. Nor was Mrs Bartholomew a joint owner of the leasehold or freehold with Mr Kremer; they owned separate interests

On the second issue, ownership or otherwise of the wall was irrelevant. The two tests were whether it was a party wall within the meaning of the Act, which it was, and whether Mr Kremer was a building owner within the meaning of the Act, which he was. Provided those two tests were satisfied Mr Kremer had the right to undertake works to the party wall.

On the third issue, being the project architect does not disqualify someone from being a party wall surveyor. The Court also found that a surveyor must be a natural person, and could not be a company or a firm.

On the fourth issue, although they were matters of law, the third surveyor could not have made an award without dealing with them. Surveyors can deal with matters of law if they so choose (provided that the issues arise within their jurisdiction under the Act) but that decision is not final; it can be challenged in the Courts.

Comment:

This decision is consistent with Lehmann v Hermann, which was limited to situations where there were joint owners of an interest in land, not separate owners of separate interests.