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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.
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           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.

				
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