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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.
More
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.
Summary
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.