Party wall

You may have Planning Permission and Building Regulations approval  but if  your works are going to physically impact on your Adjoining owner  you need to consider Party wall action indeed you are legally required to do so. 

ADS can provide all your Party wall requirements, and give free telephone advice ( we are also on the Faculty of Party wall surveyors advice line). We have extensive experience  in dealing with party wall actions. We have the advantage over some that we understand engineering and technical drawings and how small details  in the design or their absence can negatively impact on buildings.

• If you are an Adjoining Owner and your neighbour has not served notice when you believe it is  required please contact us as soon as possible.
• If you have received a notice and want to know what to do next please call
• If you think you need to serve a Party Wall notice for your works we can help.

PARTY WALL ACTION  – what is it and why

The Party Wall etc. Act 1996 creates a formal method of resolving different points of view of different owners.  Nowadays invariably a necessary process for  a large proportion of  building works particularly in urban areas  and should be considered at the outset of any building project.

The Act does not only deal with walls , but party structures ( such as floors between flats) and excavations close to a neighbours property (the etc. part of the Act) .  The point of the Act is to deal fairly with the interests of “owners“ on either side of the of boundary when one of them wants to do building work on, or excavate close to the neighbours property  when they cannot agree on the matter between themselves.

All Owners of a party structure have rights to extend, cut into or even demolish  and excavate close by as they require. However, before an Owner utilises those rights they must serve a Party Wall notice telling them what you intend to do.

In effect the rights do not exist unless a notice is served. Failure to serve a party wall notice when required can allow the Adjoining Owner to seek an injunction to stop the works until the requirements of the Act are met. Injunctions of this nature are usually granted with a court order stopping work until the party wall procedures are put in place. Costs of the action may well have to be met by the defendant ie the owner  who did not serve notice.

If the act gives those rights your neighbour cannot stop you carrying out the work  but the methods used, precautions, safeguards required  need top be agreed, also what happens if damage is caused.

You Adjoining Owner  may agree to your proposals ( in writing)  and  allow  you to proceed without any further action.

There is no reason after service of notice that the two Owners cannot agree matters between themselves. However, this is best  in writing and with record of the condition of the Adjoining owners property  so any future damage can be identified.

However with those agreements are sometimes vague and can miss important matters as the two Owners unless experienced in building matters are not aware of all the implications of the work. Those agreements can still be disputed later leading to court actions, whereas Party wall awards if correctly prepared  are less likely to be challenged.

If the owners do not agree and dissent to the notice then the formalities of the Party Wall etc. Act are used.  Instead of face to face arguments , disruption, obstruction or  legal action Party Wall surveyors are appointed by each side to determine the matter and serve an award prior to work commencing.

You should ensure that all party wall matters are settled before commencing works to avoid costly legal disputes and more importantly bad feelings between you and your Adjoining Owner

BASIC PROCEDURE

The Building Owner (BO) who wants to start work on a party structure , a party  fence wall or excavate close to, and lower than the Adjoining Owners foundations must serve notice on the Adjoining Owners. That is  the adjoining  freeholders and or leaseholders, saying what work they intend to do. Depending on the type of work the notices must be served either 1 or 2 months before works commence.

There are minimum requirements for the notice to be valid and there are several types of notice depending on the type of proposed work.

The Adjoining Owner (AO) has 14 days to agree or disagree (dissent).
Dissent does not mean the Adjoining owner can stop the work , only that they can appoint a surveyor to check if the Building Owner has  rights to do the work and if so look after their interests.

The Adjoining Owner can also, but rarely, serve a counter notice asking for additional work, precautions, and safeguards are required or even more rarely give  reasoned arguments why to the work should not place at all . (The Building Owner does always have to comply with the counter notice)

The Adjoining Owner (AO) may simply not reply in which case they are assumed  to have dissented to allow the process to progress and there is a deemed “dispute”

When the Adjoining Owner directly dissents  there is a “dispute”

If there is a “dispute”  then surveyors MUST be appointed.

A “dispute” does not mean that the Owners have fallen out or are angry with each other. It is just a description of the legal position. It allows, in law, the Adjoining Owner to appoint a surveyor to look after their interests.

If the Adjoining Owner appoints a surveyor, then the Building Owner must do likewise. Neither owner can act as their  own surveyor in a party wall dispute.

The Two Surveyors liaise and immediately select a Third Surveyor as an arbiter who can intervene in the process if requested by either of the surveyors  or either of the owners. The Third surveyor selected  must be a highly experienced surveyor . Although there should rarely be a need to involve the Third Surveyor in typical domestic Party Wall actions  the surveyors must always  inform the owners of the name of the Third surveyor as soon as selected, so they can if they can.

Alternatively,  instead of appointing two surveyors the Owners can agree to use a single surveyor agreed too and appointed by both Owners as “Agreed Surveyor”. The Agreed Surveyor must act independently of the Owners and prepare an award which protects  both Owners.  With an Agreed Surveyor there is no Third Surveyor as arbiter or for the Owners to approach . Therefore Owners need to make sure they choose an Agreed Surveyor carefully.

The costs of ALL surveyors are USUALLY but not always required to be met by the Building Owner.

Once appointed surveyors cannot be dismissed or changed nor can they withdraw unless they are deemed or deem themselves incapable of carrying out their duties.

Surveyors must act according to the Party Wall etc. Act 1996 . Surveyors are appointed they are not employed or contractually engaged .They have a semi-judicial position with legal powers but the Act imposes certain duties on the surveyors and the process must be correctly followed. Surveyors cannot deal with matters that are not laid down in the Act , such as position of property boundaries . They are also duty bound to act impartially and not act as a agent for there appointing owner to frustrate the process .

Surveyors normally inspect and record the condition of the Adjoining Owners’ property. (not a legal requirement but best practice). They then draft an “award” which identifies rights but also imposes responsibilities on the Building Owners such as hours of work, rights of access, notice before access, protection to the Adjoining Owners’ property, etc. It can also award compensation, costs (including those of the surveyors) , or even a requirement for the Building Owner to lodge sums as security where the works are particularly risky.

An award served is legally binding on the Owners unless appealed within 14 days but an appeal  only on the basis that the procedure is correct  rather than content. It is not a document to be ignored as it can be enforced by the courts.

In the award the Building Owner and his contractor can (subject to restrictions) be given the right to enter the Adjoining Owners’ property to do any necessary work covered by the award and the Adjoining Owner must not prevent that access to do so is an offence.

In the event of damage to the Adjoining Owners’ property the Building Owner must immediately  make good any damage or compensate the Adjoining Owner. It should be noted it is the Building Owner who is legally liable to the Adjoining Owner for damage not the Contractor who is in legal terms just an employee of the Building Owner.

If the damage is disputed, surveyors determine the extent and cost of the damage and the remedial works by a further award . The surveyors can also award money if the Adjoining Owner requests that instead of a repair.

It should also be noted that where the Building Owner wishes to use part of a  party wall  but built by the Adjoining Owner . The Adjoining Owner will have to be paid for the area of the wall used providing there is no previous legal agreement. The costs are calculated at rates current at the time of new use, not when the wall was originally built. This cost would be included in any award and must be paid before works commence.(Typical example is where one owner has built a wall as part of an extension on the boundary and the neighbour subsequently wishes to use the wall as part of their extension.

If the wall to be used is not a party wall then the Adjoining Owners permission is required  and again  the Building Owner  will have to pay to use it .  This time the Building owner can ask for whatever sum he wishes or even refuse permission . (Typical example is where one owner has built a wall as part of an extension inside his own land but up to the boundary and the neighbour subsequently wishes to use the wall as part of their extension.)

So the Party Wall etc. Act 1996 can have serious impact on even small building works where it may interfere with the Adjoining owners property. It is therefore, always best to get advice from an experienced Party wall surveyor early in the design process to prevent delays, arguments with your neighbours and unexpected costs . The internet has a wealth of further information see Faculty of Party Wall Surveyors’ website http://www.fpws.org.uk the only organisation where Party wall surveyors have to have training and are examined by their peers to obtain membership.

ADS Ltd. Party Wall surveyors are listed as Fellows or members of FPWS and are bound by their code of conduct. In addition the company is regulated by the RICS.