A common problem faced by surveyors is ascertaining whether or not a notice served by or on behalf of a building owner (or more rarely an adjoining owner) is valid.
The test for assessing whether notices under a statute are valid is set out by the Court of Appeal in Trafford Metropolitan Borough Council v Total Fitness UK Ltd.
There are two stages.
The first stage is to establish, on it’s true construction, what does the notice say?
The notice must be sufficiently clear for the adjoining owner to understand what is proposed (Hobbs v Hart & Grover).
Surveyors can be assisted by the principal set out in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd; that minor defects will not necessarily invalidate the notice if the reasonable recipient, with knowledge of the factual and contextual background, would not be confused by the error.
For example, a typographical error in a name or an address would not render the notice invalid if the intended recipient is able to ascertain the name or address that was intended. Note that this is a subjective test as to what the intended recipient would understand – not the often cited “man on the clapham omnibus” or indeed his or her surveyor.
Once the content of the notice has been established the next stage is to assess whether that content meets the requirements specifically set out in the statute. In the case of the Party Wall Act there are surprisingly few. For example, only section 3 notices must contain the building owner’s name and address. This is not a requirement for section 1 or section 6 notices.
This is an objective test – the Mannai Principle will not save a notice which does not meet the statutory requirements. If information required by statute is missing then the notice will not be valid even if the notice is sufficiently is still clear without that information.
If a notice might be invalid the point should be taken and dealt with as soon as possible.
If the receiving owner (mistakenly or otherwise) treats the notice as if it is valid then an estoppel may arise that would prevent the adjoining owner from later denying that the notice is valid.
If there is any doubt as to the validity of a notice then, when appointing surveyors, it should be made clear that the appointment is made without prejudice to the issues of validity of the notice.
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