Building Owners Page Party Wall Surveyors .org OVERVIEW The purpose of the Party wall etc. Act 1996 is to avoid, or at least minimise, disputes between neighbouring property owners with regard to specific construction works and requires a building owner to give an adjoining owner prior notice of such works. It also grants certain rights to building owners that might otherwise constitute trespass or nuisance but at the same time seeks to provide a means of protecting the interests of adjoining owners and occupiers, particularly from any potentially adverse effects those works might have. The Act applies to works to party structures, which include party walls, floors and partitions, that separate buildings or parts of buildings, and party fence walls (essentially a boundary wall between lands in separate ownership which is built astride a boundary).. It also applies to any proposed excavation within specified distances of a neighbouring property which will be deeper than the existing foundations of that property. In all but two instances, the Act requires a Building Owner to serve notice of his intentions on all Adjoining Owners. There are three types of notice each with different requirements as to the information they must contain. Any notice not providing all the relevant information or served in the incorrect manner, will be invalid and can be challenged in Court. Depending on the circumstances there may be more than one Adjoining Owner and in the case of deep excavations, an Adjoining Owner may be other than an immediate neighbour. The two exceptions not requiring Notice are:- i) Minor works unlikely to affect the structural strength or support functions of a party structure or cause damage to the neighbours side of it, such as replastering, shallow chasing for electrical wiring or inserting power sockets, and screws to support shelves, kitchen cupboards and the like, and ii) Works under Section 2 of the Act provided that written consent is obtained from all Adjoining Owners and Occupiers before work commences. Should you commence work without having given Notice, an Adjoining Owner may seek a Court injunction to prevent you continuing and/or requiring you to remove any work already carried out. They would need to demonstrate that there is a serious issue to be tried; that the balance of convenience favours the grant of an injunction; and that damages would not be an adequate remedy but recent judgements suggest the Courts are taking a dim view of non-compliance with the Act and the risk is that an injunction would be granted, with the Adjoining Owner’s legal costs being awarded against you. Building Owners Page Although the Act contains no direct enforcement provisions, not serving Notice can have far reaching consequences. In a 2003 legal case, the Court of Appeal held that an owner who failed to serve notice was liable for damage caused to his neighbour’s property despite the evidence being inconclusive. The matter was determined on the balance of probability with the court taking what they termed a ‘robust approach to causation’ because, in their view, the action only became necessary “because of the defendant's breach of the requirements of the Party Walls Act 1996”. The judges concluded “This is a classic case, as it seems to us, in which … no costs needed to be incurred at all if a proper party wall notice had been served”. The cost of repairs was £1,740. The legal bill awarded against the transgressing owner, in the order of £30,000. A salutary warning! Section 10 of the Act stipulates that where the Adjoining Owner does not consent in writing to works notified by the Building Owner, a surveyor or surveyors must be appointed to determine the time and manner in which those works are carried out. It also establishes a procedure to resolve any disputes between neighbouring owners that might arise in relation to those works, including damage occasioned to an adjoining owners property caused by them. Even if Notice has been served and written consent obtained, it is still open to an Adjoining Owner to dispute ‘any matter connected with any work’ to which the Act relates. Consent, once given cannot be withdrawn, but if, for example, you carry out work different to that stated on the notice and/or otherwise agreed (S.7(5)) or undertake it in such a way as to cause unnecessary inconvenience (S.7(1)) or cause damage to the Adjoining Owner’s property (S.7(2)) or contravene any other provision of the Act, the Adjoining Owner can invoke the Section 10 dispute resolution procedure, even after the work has been completed. Surveyors cannot be appointed unless a valid Notice has been served first but if a dispute does arise after service of Notice, you cannot frustrate the procedure by not appointing a surveyor. If you refuse to do so or fail to appoint one within 10 days of being requested to do so by an Adjoining Owner, that Adjoining Owner may appoint one on your behalf (S.10(4)). And, once a surveyor has been appointed, his appointment cannot be rescinded (S.10(2)). There is no set surveyor’s fee and hourly rates vary but are commonly in the order of £125 per hour plus VAT outside of London and substantially more within its confines. It should be possible to obtain a fixed fee quotation from a surveyor acting either solely on your behalf or as an Agreed Surveyor acting for both parties. An Adjoining Owner’s Surveyor’s fees are not normally disclosed in aggregate until an award is made although there is no reason why the hourly rate should not be known in advance. Building Owners Page It is in your interest to keep Adjoining Owners on side and we recommend you let them know about the works you intend to carry out before serving Notice. Show them any plans you have had drawn up or engineer’s designs you have had done and discuss how the works will be carried out. Tell them that by law you will have to serve Notice and explain to them beforehand what the notice will say and what choices they have about responding to it. Receiving a legal notice in the post without any prior warning will only give them cause for concern and be more likely to result in a negative response. If an Adjoining Owner fully understands what is proposed and the procedures involved, there is a greater chance of them consenting to the works. And, if written consent is obtained, surveyors will not be appointed unless a dispute subsequently arises that cannot be settled between you. It is possible for many schemes to proceed in this way and avoid the cost to you of surveyors’ fees. NOTICES – SERVICE AND EFFECT Depending on the work you wish to undertake, you may need to serve one or more of three notices under the following sections of the Act. Section1: Line of Junction Notice You must serve this Notice if you intend to do either of the following: i) Build a wall astride the boundary (party wall or party fence wall). The Adjoining Owner may choose to consent or not. If he consents, which must be done by serving Notice on you, he may be obliged to pay some of the costs of building the wall. We recommend you take professional advice on this aspect. Should the Adjoining Owner not consent, you can only build the wall at your own expense and entirely on your own land. Consent can only be given within 14 days of you having been served Notice on the Adjoining Owner. If he does not respond to the Notice within 14 days the you can only proceed on the basis that he has not consented. ii) Build a wall entirely on your own land. You may build such a wall without an Adjoining Owner’s consent but must carry out the work between 1 and 12 months after service of Notice. The Adjoining Owner does not have to respond to such a notice but may do so. Building Owners Page You also have the right to place below the level of the Adjoining Owner’s land such projecting footings and foundations as are necessary for the construction of the wall and have access to his land to do so. The Adjoining Owner and any occupier of the premises have a right to be compensated for any damage occasioned to their property by the building of the wall and the placing of any footings/foundations beneath it. (S.1(7)) Should any dispute arise between you and the Adjoining Owner (or an occupier) in connection with the notified works, it is to be determined in accordance with Section 10 of the Act, and surveyors must be appointed. This would most likely be with regard to access arrangements and/or compensation for damage caused by the works. See ‘Rights of Access’ below. You may wish to consider whether it is worthwhile appointing surveyors from the outset in order to agree in conjunction with the Adjoining Owner reasonable conditions under which the work might be carried out, particularly as regards the extent of any working area and protection thereto, the hours of work and the provision of temporary security to the boundary etc. This should serve to minimise the likelihood of issues becoming contentious. Section 3: Party Structure Notice (for Section 2 works) Section 2 of the Act gives you the right to undertake various works set out in subsections 2(2)(a) to 2(2)(n) some of which are exercisable subject to further criteria as regards making good damage and other matters which are too detailed to go into here. Should you require further information on the rights given by Section 2 or the service of counter notices under Section 4 please follow this link to the Party Wall etc. Act 1996 or seek professional advice. An Adjoining Owner has 14 days in which to respond to a Party Structure Notice beginning with the day on which the Notice was served. He may either consent to or dissent from the notified works. Should he dissent, the dispute resolution procedures of Section 10 will be set in train and surveyors will need to be appointed. Should he not respond within 14 days he will be deemed to have dissented which will have the same effect. Building Owners Page Section 6: Notice of Adjacent Excavation You must serve this Notice if you wish to excavate within 3m or 6m of an Adjoining Owner’s property and to a depth below the foundations of a building or structure belonging to him. The excavation proposed may be for any purpose including the provision of foundations, the construction of a basement or the installation of drains etc. For Notice to be necessary within 3m, the depth of excavation simply has to be deeper that his foundations. Between 3m and 6m, the depth of excavation has to be below a line drawn at forty five degrees down from the face of his building at its foundation level. The Adjoining Owner has 14 days in which to respond to the Notice beginning with the day on which it was served. He may either consent to or dissent from the notified works. Should he dissent, the dispute resolution procedures of Section 10 will be set in train and surveyors will need to be appointed. Should he not respond within 14 days he will be deemed to have dissented which will have the same effect. NOTICES - CONTENT There is no set format for these and they may be combined in a single notice. However, there is specific information they must contain in order to be valid and a timescale to which they must be served. A defective Notice will invalidate the appointment of any surveyors and render any null and void any Award that flows from it. Section 1 Construction and repair of walls on line of junction The Notice must indicate your desire to build and describe the intended wall and must be served at least one month before you intend to start work Section 3 Repair etc. of party wall: rights of owner (such rights being set out in Section 2 of the Act) Known as a Party Structure Notices these must state: i) Name and address of Building Owner ii) Nature and particulars of the proposed work iii) Date on which the proposed work will begin and must be served at least two months before the date on which the proposed work will begin. Building Owners Page Further information must be provided if you wish to construct ‘special foundations’ on the land of an Adjoining Owner, these being foundations in which an assemblage of beams and rods are employed for the purpose of distributing load. The Act requires that you must obtain the specific written consent of the Adjoining Owner to the placement such foundations on their land. (S.7(4)) In addition, there is provision under Section 4 of the Act for an Adjoining Owner to serve a counter notice requiring you to undertake additional works to their benefit in certain limited circumstances. It is possible to avoid complying with a counter notice but you would have to prove that the execution of such works would : i) Be injurious to you ii) Cause unnecessary inconvenience to you; or iii) Cause unnecessary delay in the execution of the works pursuant to the Party Structure Notice Section 6 Adjacent excavation and construction The Notice must indicate your proposals and state whether you propose to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the Adjoining Owner. The Notice must also be accompanied by plans and sections showing the site and depth of any excavation you propose to make, and, if you propose to erect any building or structure, its site. Such notices must be served at least one month before you begin to excavate, or excavate for and erect a building or structure. Building Owners Page CONSENT TO NOTIFIED WORKS If an Adjoining Owner consents to your proposals, party wall surveyors will not be appointed. However, provided that Notice has been served, he can still institute Section 10 procedures to deal with a subsequent dispute arising out of any matter connected with any work to which the Act relates, such as repairing damage or compensation in lieu, and surveyors will need to be appointed. APPOINTING SURVEYORS Section 10 provides that in the event of a dispute both parties shall concur in the appointment of one surveyor (the Agreed Surveyor) or if they cannot agree on one surveyor they shall each appoint a surveyor. All appointments must be in writing and once made cannot be rescinded. The appointment must be made by all relevant owners (both owners where the property is jointly owned) and in the case of a corporate body jointly by the company secretary and a director. Should either party to a dispute refuse to appoint a surveyor or neglect to appoint a surveyor for a period of ten days beginning with the day on which the other party serves a request on him to do so, the other party may make the appointment on his behalf. Where two surveyors are appointed, they are obliged to select a third surveyor who may be called upon to settle any matter on which the two surveyors cannot agree. The Act provides various means of dealing with situations where any of the surveyors refuse or neglect to act, die or become, or deem themselves, incapable of acting. Building Owners Page AWARDS & THE FUNCTION OF APPOINTED SURVEYORS The surveyor or surveyors will produce a document known as an Award. The Act empowers them to settle by this means any matter which is connected with any work to which the Act relates and which is in dispute between Building and Adjoining Owners. An Award may determine: i) The right to execute any work ii) The time and manner of executing any work iii) Any other matter arising out of or incidental to the dispute including the costs of making the Award. Party wall surveyors may not settle by Award any matter pertaining to works undertaken for which Notice has not been served but are empowered to correct a defective Notice. If either of the parties to an Award are aggrieved by it, they may lodge an appeal against it in the County Court within 14 days of its service. However, this cannot be done wantonly or spuriously. An Award will only be rescinded or modified by a Court if the surveyors have acted outside their jurisdiction or incorrectly interpreted the Act or if it contains errors of fact or might in some other way be held to be ultra vires. It would also be held invalid if the surveyor(s) were improperly appointed. SURVEYORS FEES The Act provides that such of the parties as the surveyor or surveyors making the Award determine shall pay the reasonable costs incurred in: i) Making or obtaining an Award ii) Reasonable inspections of work to which the Award relates iii) Any other matter arising out of the dispute Surveyors fees will normally be paid by you as the person desirous of undertaking the work but can be awarded against an Adjoining Owner who behaves unreasonably and by virtue of that behaviour incurs additional costs. A proportion of the costs of making an Award may also be awarded against an Adjoining Owner who serves a counter notice depending upon the benefit to that owner of the works he requires to be done. See also ‘Expenses’ Building Owners Page OTHER COSTS Solicitor’s and Engineer’s costs can be included in an Award where the advice sought on a particular issue is reasonably necessary to assist surveyors in the settlement of a dispute. However, an Award may not include any costs incurred by an owner in obtaining general advice on party wall matters, legal or otherwise. Legal costs in bringing pressure to bear on an owner to comply with the Act may only be recovered through the Courts as part of due legal process e.g. in seeking and successfully obtaining an injunction. They may not be included in an Award. EXPENSES By ‘Expenses’ the Act means the physical cost of carrying out works and while these are generally the responsibility of the Building Owner, there are circumstances where the Adjoining Owner can be required to make a financial contribution. These are set out in Section 11 of the Act and include where: i) A new party wall or party fence wall is built astride the line of junction. ii) Work is necessary to an existing party wall on account of defect or want of repair. (subsections 2(2)(a) and 2(2)(b)) iii) Works are requested by way of counter notice served under S.4 iv) Use is subsequently made by an Adjoining Owner of work carried out solely at the expense of the Building Owner However, there are two subsections in Section 11 which refer to payments by the Building Owner to an Adjoining Owner. These are: i) S.11(6) Where an adjoining premises is laid open in exercise of the right mentioned in Section 2(2)(e) a fair allowance in respect of disturbance and inconvenience shall be paid by the Building Owner to the Adjoining Owner or Occupier; and ii) S.11(8) Where the Building Owner is required to make good damage under the Act, the Adjoining Owner has the right to require that expenses of such making good be determined by the appointed surveyors and be paid to him in lieu of the making the good the damage. Building Owners Page The exact provisions of Section 11 other than subsections (6) and (8) are too detailed to go into here. Should you require further information on these please follow this link to the Party Wall etc. Act 1996 or seek professional advice. RIGHTS OF ACCESS Section 8 of the Act gives the right to you, your servants, agents and workmen to enter and remain on an Adjoining Owner’s land or premises during usual working hours for the purposes of executing any work in pursuance of the Act and for you to remove any furniture or fittings or take any other action necessary for that purpose. This includes the erection of scaffolding on an Adjoining Owner’s land where necessary for such works to be undertaken safely and for that purpose, usual working hours would be 24 hours per day for as long as required. Before entering an Adjoining Owner’s land in exercise of those rights, you must give you 14 days notice. However, in a case of emergency, such notice as is reasonably practicable is sufficient. An Adjoining Owner cannot frustrate your right to undertake work from his property by refusing access. If the premises are closed, you, your agents or workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises. There is some disagreement amongst party wall surveyors as to whether Section 8 gives a right of access over an Adjoining Owner’s land in order to build a wall wholly on the Building Owner’s land at a line of junction. The majority of surveyors seem to interpret the Act as giving such a right but the contrary argument is that building a wall on one’s own land is a common law right and therefore not in pursuance of any right granted by the Act. The right of access to excavate for and construct a projecting footing/foundation is undoubtedly given by the Act. Building Owners Page SCHEDULES OF CONDITION It is standard practice for the relevant parts of an Adjoining Owner’s property to be inspected by the surveyor(s) in order to prepare a schedule of its condition before the Building Owner carries out any works. This safeguards not only the Building Owner from spurious claims but protects the position of the Adjoining Owner by establishing a reference point against which the extent of damage caused by the works, if any, can be assessed. Normally the schedule will be in written form, cross referenced to photographs, and be appended to an Award. It is not a requirement of the Act that such a schedule be prepared but legal judgements have indicated that the Courts expect surveyors to do so. Accordingly, it is in the Adjoining Owner’s interest to allow a survey to be undertaken. Should he refuse access for a schedule to be prepared, it will complicate matters for appointed surveyors if they need to assess any claim for damage and put him at a disadvantage should it be necessary for matters to proceed to Court. Note: The foregoing is intended to be for guidance purposes only. It is not a definitive legal interpretation of the Party Wall etc. Act 1996 nor does it cover every aspect of the Act. The content may be subject to errors or omissions and no liability will be accepted for any reliance placed thereon. The issues surrounding party wall matters can be complex and for the avoidance of doubt we recommend you appoint a party wall surveyor to act on your behalf.