THE PARTY WALL ACT 1996
Information in this section is not intended as a comprehensive guide to the Party Wall Act. I set out my understanding of the Act and Justin Burns MRICS MFPWS has kindly provided more specialist knowledge below.
detailed information can be found at http://www.communities.gov.uk/publications/planningandbuilding/partywall
or by writing to: ODPM Free Literature PO Box 236 Wetherby, West Yorkshire LS23 7LB.
The Act recognises two main types of a party wall:
A wall is a party wall if it stands astride the boundary of land belonging to two (or more) different owners.
A wall is a party fence wall if it is not part of a building and stands astride the boundary line between lands of different owners and is used to separate those lands a (for example a garden wall). This does not include such things as wooden fences.
The Act also uses the expression party structure. This is a wider term, which could be a wall or floor partition or other structure separating buildings or parts a building's approached by separate staircases or entrances (for example flats).
The Act provides a building owner, who wishes to carry out various sorts of work to an existing party wall, with additional rights going beyond ordinary common law rights. The most commonly used rights are:
v To cut into a wall to take the bearing of a beam (for example for a loft conversion) or to insert a damp proof course all way through the wall.
v To raise at the height of the wall and /or increase the thickness of the party wall and, if necessary, cut off any projections which prevent you from doing so.
v To demolish and rebuild the party wall.
v To underpin the whole thickness of a party wall.
v To protect two adjoining walls by putting a flashing from the higher over the lower, even where this requires cutting into an adjoining owners independent building.
What are your duties under the Act?
If you intend carrying out any of the works mentioned above you must inform all adjoining owners. You must not cut into your own side of the party wall without telling the adjoining owners of your intentions. Although the Act contains no enforcement procedures, starting work without serving a notice could mean your neighbour could seek a court injunction or other legal redress.
An adjoining owner cannot stop someone from exercising their rights given to them by the Act, but may be able to influence how and at what times work is undertaken. The Act also provides that a building owner must not cause unnecessary inconvenience. This is taken to mean inconvenience over and above that which will inevitably occur or went such works are properly undertaken.
Adjoining owners should note that the primary purpose of the Act is to facilitate development. In return for rights to carry out certain works, the building owner (a person having the work done) must notify you in advance. He is made legally responsible for putting right any damage caused by carrying out the works, even if the damage is caused by his contract.
You cannot stop someone from exercising their rights given to them by the Act, but you may be able to influence how and at what times the work is done. If you refused to respond to a notice from a building owner, he will be able to appoint a surveyor on your behalf so that the dispute resolution procedure can proceed without your cooperation.
I am indebted for the following which is provided by Justin Burns BSc MRICS MFPWS of Peter Barry Party Wall Surveyors
Peter has recently helped to set up a free tool which generates party wall notices for home owners - http://www.mypropertyguide.co.uk/partywall/notice/generator. I am told it is the only one of its kind available.
The Party Wall etc. Act 1996 is often overlooked by Building Owners during the planning stages of a domestic extension when the focus is on the architectural elements and obtaining the necessary consents. As the notice period will be between one and two months such an oversight could set your works back considerably.
Start by checking whether your work comes within the scope of the Act – it is important to realise that the Act covers adjacent excavations as well as work directly to a party wall. When you are satisfied that notice is required you should serve on all affected adjoining owners to get the process started.
It is important to realise that The Act is only invoked by the serving of notice so should you fail to serve notice in advance of your work you will not gain the benefits afforded to the Building Owner by The Act; such as access to the Adjoining Owner’s property where necessary.
Make sure that the notice is valid as if it is not everything that follows will also be invalid. There are 3 different types of party wall notice so it important that you choose the right one and include all the necessary details; including drawings if the notice relates to excavation work.
Upon receipt of your notice your neighbour (referred to in The Act as the ‘Adjoining Owner’) has the option to either sign their consent, or dissent which effectively puts the two owners in dispute. Should the Adjoining Owner choose to dissent then both owners must appoint surveyors to resolve the dispute by way of a party wall award, although they may choose to concur in the appointment of a single surveyor; referred to as the ‘Agreed Surveyor’.
It is a good idea to talk to your neighbours about your plans before serving the notice as that will greatly increase the chances of them consenting, or at least concurring in the appointment of an ‘Agreed Surveyor’. It’s best to include the name of a surveyor on your notice so your neighbour can consider them for the role of Agreed Surveyor.
If the Adjoining Owner chooses to consent you may still want to have a schedule of Condition prepared covering the parts of their property that are at risk. This will make it much easier to attribute blame later if damage is caused by the works.
If two surveyors are appointed then their first duty is select a Third Surveyor to settle disputes. This in affect forms a working tribunal and is the main reason why so few party wall disputes end up in court. Either of the surveyors or the owners can make a referral to the Third Surveyor.
When the appointed surveyor(s) have agreed all the issues the resulting Award is served upon the owners. The Act provides a 14 day appeal period during which either owner can apply to the County Court to have the award set aside although there is nothing in The Act to say that work cannot start before the appeal period has run.
The level of surveyors’ fees is an area that causes much consternation between the parties. Technically, it is for the surveyors to decide who pays their fees but in all normal circumstances that will be the Building Owner. Ideally the Building Owner should obtain a fixed fee from their surveyor (or the ‘Agreed Surveyor’) but the Adjoining Owner’s surveyor will not put his fee forward until all other points have been agreed. It should be scrutinised by the Building Owner’s surveyor and if agreement cannot be reached referred to the Third Surveyor. Any arguments of fees should not hold up the awards being served as it has no effect on the works.