Podcast Summary 052: Party Walls and Boundary Disputes with Nicholas Isaac

Nicholas Isaac is a property litigator with extensive experience in all aspects of property litigation, and relishes the challenge of difficult cases, last-minute instructions and novel points. He works as a barrister at Tanfield Chambers.

Nick’s practice sometimes crosses over into commercial work, usually with a property angle, and his clients include large London estates, as well as commercial and private clients.

The Work of a Barrister

Nick Isaac started off his journey by doing a languages degree, continuing onto a law conversion course. During his months of pupilage, he did a lot of property law, which included boundaries. Very soon, he increasingly started working on party wall cases, which led to writing a textbook about it. He explains what the most exciting aspects of his job are.

“My favourite bit of the job is going to court arguing a case. A really exciting thing about being a barrister is standing in court, saying what you were prepared to say. Then either a witness answers a question in a way that you didn’t expect to, or the judge goes off in a direction that you didn’t expect. And suddenly you have to change everything that you were thinking to that moment, and go off in a completely different direction, but do it as if you’d always been expecting that to happen. That nail-biting roller coaster ride, which you get when you’re in court, makes the job as fascinating as it is.”

“There are elements of performance about the courtroom advocacy,” he continues. “Many people say that criminal advocacy is where the real performance is, because you’re performing to a jury. But you shouldn’t underestimate the performative aspects of appearing in a civil court, because you’re constantly adjusting your demeanour, to suit the reaction of the judge or the witness or your opponent. So it’s a constant reading of the audience and adjustment of what you’re saying and how you’re acting.”

Boundary Disputes

Nick goes on to explain when is the right time to call a barrister and what is behind almost all boundary disputes.

“As barristers, we are litigators. We specialise in courtroom skills – writing documents for courts, speaking in court, etc. We tend to be approached when things have already become fairly disputed. The reason they’re coming to us is for our drafting skills or our advisory skills to avoid ending up in a dispute. But I think it’s fair to say that probably 90% of the cases come to me because somebody has already fallen out in a major way, or they’re about to.”

“In most cases,” he continues, “boundary disputes can be put down to some elements of poor communication. Somebody has done some work to the boundary without properly informing their neighbours. Boundary disputes never seem to start as a matter of law, they start because people fall out with other people. And then you get into this vicious cycle that leads to a change in perception. So somebody does something as perceived to be wrong, and the other neighbour gets upset about it. And then you very quickly descend into a situation where both neighbours perceive everything the other neighbour does as being a negative thing designed to annoy the neighbours.”

The Party Wall Act

Nick explains the details of the 1996 Party Wall Act which governs the way party walls and the areas in the immediate vicinity of boundaries between properties should be dealt with as between neighbouring owners. He also explains how this act applies to a range of real-life situations, highlighting that a lot of being a neighbour involves give and take.

“The 1996 Party Wall Act applies when you want to do something to the wall, which separates your property from your neighbour’s property. The basic idea behind the Act is that it facilitates development for the person who wants to carry out work, and at the same time protects the interests of the adjoining owner, the person whose property is potentially going to be affected by those works. A lot of the time, assuming that the act is engaged, it works very well. But there are two main problem areas: the one is where people just get on and do stuff without invoking the act, and the other is where party wall surveyors make something of a mountain out of a molehill and invoke the Act for very minor works.”

How to Approach Potential Boundary Issues as a Surveyor

As Nick explains, boundary disputes can be very costly. When inspecting a property, surveyors should be very careful not to provoke unnecessary boundary disputes. He also talks about the relationship between the two professions – litigation solicitor and a surveyor.

“Unless you are being instructed as a land surveyor to measure what is on the ground, and potentially compare that with conveyance plans, I, as a surveyor, would do my damnedest to avoid highlighting too much by way of potential boundary issues. In an evaluation report, I certainly would not be making a big song and dance about potential boundary issues, unless the property information form indicated that there was an existing boundary issue.”

“The surveyors’ role is explicitly dispute resolution,” he concludes, “it’s not supposed to be about dispute creation. Something which surveyors should absolutely be very alive to is keeping the costs and their fees proportionate to the dispute in question.”

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