‘Party Walls’ and ‘other structures’ between neighbouring properties
A party wall spans the boundary of land belonging to two or more different owners. It may be part of one building, separate two, or more buildings.
Other boundary structures in addition to the ubiquitous party wall may exist between neighbouring properties and up to nine structure types are referred to within section 2 (2) of the Party Wall etc. Act 1996.
These include Party Fence Wall (garden wall between properties), Party Structures (floor, staircase structure separating flats/maisonettes), External Walls of neighbouring buildings, and Boundary Walls (free-standing wall wholly on the land of one owner.
Not surprisingly disputes in this area are common and we regularly give advice and act as appointed Party Wall Surveyors for both building and adjoining owners to help resolve or prevent disputes.
The Party Wall etc. Act 1996
Party Wall legislation was first enacted for properties in London to assist in the rebuilding of the City of London following the Great Fire of London. This initial party wall and building legislation led to a succession of London Building Acts.
It was only in 1996 that this legislation was extended to all parts of England and Wales by the Party Wall etc Act 1996. It replaced the London Building (Amendment) Act 1939, effectively turning the regime that was operated in London for so long into a countrywide regime.
Party Wall Advice
WHAT DOES THE PARTY WALL ACT DO?
Essentially the Act is concerned with the construction, repair, alteration or demolition of walls adjacent to or astride a boundary, including horizontal party structures such as floors between flats.
The Act allows owners to treat the whole of the party wall as if it were their own, but debars them from dealing with their half on its’ own without informing their neighbours.
The ‘etc’ part of the Act refers to provisions relating to excavations and construction within specified distances from other buildings or structures.
The Act includes provisions for the serving of notices, documentation required, protection of parties’ interests, compensation and dispute resolution.
Core principles include:
- Recognition of the common interest of more than one owner in certain structures for the function afforded to their properties.
- Assurance that proposals by one owner are carried out with the knowledge and consent in writing of the other.
WHERE DOES THE PARTY WALL ACT APPLY?
The 3 separate situations where the Act applies
Proposed construction of a Party Wall or wall up to, but not across the boundary – Section 1
Work to existing party walls and structures – mainly dealt with by Sections 2-5
Excavation below the level of the foundations of nearby (not necessarily adjacent) buildings – Section 6
NEW BUILDINGS ON THE LINE OF JUNCTION – SECTION 1
The Act applies to operations involving works at the line of junction (boundary) between land of different owners where that line of junction is either:-
- not built on; or
- only built on with a free standing boundary wall on one owner’s land
The Act permits the building owner to either:
- build a party wall (which serves a building, or two buildings) or a party fence wall (garden wall) equally astride the boundary and paid for according to the use made of it – if the adjoining owner agree.
Or, if next door does not agree;
- construct a boundary wall wholly on their own land and to project necessary footings for that wall on to neighbouring land as long as they are not reinforced.
Under this section the building owner (who is defined as the person intending to exercise rights under the Act) must serve notice at least one month before starting.
WORKS TO A PARTY WALL OR STRUCTURE – SECTION 2-5Before looking at the works permitted by the Act to a party wall or structure it is important to understand what constitutes a party wall or structure.What is a Party Wall?A party wall is defined by the Act as :-
- A wall forming part of a building standing on the land of two different owners- see figure 1
- A part of a wall which does not fall within the above definition but separates the buildings of two different owners- see figure 2
To fall in the first category part of the wall’s thickness as well as its foundations must sit astride the boundary, partly (not necessarily equally) in one property and partly in the other. The wall may be part of a building or be a free-standing garden wall.
The second definition applies to walls which stand wholly on the land of one owner but have been enclosed on by a neighbour. In this case the area of wall which has been enclosed becomes a party wall and acquires the rights granted to it under the Act.
It should be noted that where a single-storey extension has subsequently enclosed on to a two-storey building, only the enclosed section of the wall is a party wall, and the rest of the wall beyond (sideways or upwards) is an external wall belonging to the person on whose land it stands.
It should be remembered that a Party structure is not necessarily a wall and can also be a floor that separates premises of two different owners.
What works are covered by the Party Wall etc. Act 1996?
When a wall already exists, a great number of rights are given to the building owner but there are also some restraints on what may be done to the building owner’s half of the party wall.
In summary party walls can be:
- made good, repaired, or demolished and rebuilt. If the work is necessary because the existing wall is defective, the cost is shared (not necessarily equally), but if it is purely for the building owner’s convenience, the owner pays for it all and for any necessary making good of neighbouring property.
- totally demolished between two buildings should the construction not comply with current requirements and be replaced with one which does. The cost is shared.
- raised upwards (eg: for a loft extension), raised downwards (eg: for a basement extension), thickened, underpinned or cut into (eg: for concrete padstones, attic floor/ridge beams, or dpc). Costs are paid solely by the building owner.
Further rights of owners can be summarized as:
- The right to cut into an adjacent external or boundary wall for flashings or weatherings.
- When projections (this maybe footings) from next door’s property overhang the party wall or the building owner’s land, or projections from the party wall make it impossible to erect a vertical wall, the building owner has the right to cut them off, where otherwise they might have an easement to remain, in order to raise the party wall or a wall on his own land.
- The building owner can change a party fence wall into a party wall and reduce the height of an existing party wall (in this case one standing on the land of two owners) to a minimum height of two metres, or as much as is needed to enclose next door’s building, plus parapet if necessary.
- In order to weatherproof the junction between two buildings each on their own land, a building owner can cut a flashing into the adjacent wall. If, on the other hand, he exposes the party wall, the building owner must provide suitable weathering for it.
- The right to execute any works necessary to connect a party structure to the premises adjoining it.
ADJACENT EXCAVATION & CONSTRUCTION – SECTION 6
The Act applies where a building owner wishes to excavate below certain depths within certain distances of nearby (not necessarily adjacent) buildings. The excavation can either be on its’ own, which includes piling, or for the purposes of a building, but just not a trial hole.
In these situations the word ‘adjoining’ is defined to mean ‘within specified distances’, not just immediately adjacent.
Section 6 primarily deals with the effects of nearby excavations. Its’ concern is the potential withdrawal of subjacent support for the adjoining buildings and consequent destabilization. It provides, therefore, parameters within which excavations by a building owner are deemed to be capable of having that effect.
The two circumstances when a neighbour must serve notice are:
- when excavation within 3 metres (measured horizontally) goes below the underside of the foundations of an adjoining building;
- when, within six metres, the excavation or piling is so deep that it cuts a line drawn downwards at 45 degrees from the point where the downward projected face of next door’s building cuts the bottom of its’ foundations.
Rights of owners:
The Building Owner is entitled to underpin or safeguard the foundations of the adjoining structure or, conversely, can be required to do so by the Adjoining Owner if no intention to provide such protection is volunteered. In the absence of agreement an award is prerequisite.
The notice has to state what, if anything, the owner intends to do to safeguard the foundations of the adjoining property and it must specify the depth and site of the excavation and building.
WHAT ARE THE PARTY WALL PROCEDURES?
BUILDING OWNER – The Act applies to my works. When do I serve notice ?
Before starting any works the building owner has a strict duty to serve written notices on each adjoining owner. For party structure/wall works (Section 2) this must be done at least two months before work begins.
However, Notices for works on the line of junction (Sections 1) or involving excavation (Section 6) must be served at least one month before the date when the proposed work will start.
Following service of a Notice an adjoining owner has fourteen days to reply and they can either consent to the works or dissent to the works. If they dissent then you must appoint a Surveyor under Section 10 of the Act.
If an adjoining owner does not respond to you within fourteen days, they are deemed to have dissented to the works and, again, you must appoint a Surveyor.
Notices expire if work has not started within a year, or if it does not proceed at reasonable speed. Notice can be waived by agreement between the owners, or if necessary to comply with a dangerous structure notice.
ADJOINING OWNER – What do I do if I have been served a Notice ?
If you receive a notice from a building owner you can:
- Accept the proposals, in which case you must do so in writing within fourteen days. Work may then proceed after the required period has expired or earlier if you agree.
- If you are not sure that the notice has been issued correctly, or you disagree with it, or wish to ensure that your concerns and interests are represented by a surveyor, you respond to the building owner in writing simply stating you are “in dispute”. You must then appoint a Surveyor under section 10 of the Act to represent yourself.
- Do nothing. If you do nothing for more than fourteen days after you have received notice, a dispute will be ‘deemed’ to have arisen. Again, you must then appoint a Surveyor under section 10 of the Act to represent yourself.
APPOINTMENT OF SURVEYORS
Once an Adjoining Owner dissents or fails to respond within 14 days a difference is deemed to have arisen and the arbitration provisions under section 10 of the Act requires that both parties appoint a Surveyor to settle their dispute.
Owners can jointly agree upon an “agreed” surveyor to resolve the dispute. This is where one Surveyor acts independently for both parties in enforcing the requirements of the Act. This is a more cost effective means of resolving a dispute but, more usually the Building Owner and Adjoining Owner will appoint their own Surveyors.
Once appointed the Surveyor or Surveyors will consider the proposal contained in the Notice and satisfy themselves that the works are permitted by the Act.
They should then check and ensure that the notified works, proposed methods of construction etc are appropriate so that inconvenience to adjoining owners is kept to a minimum and that their property rights are suitably safeguarded. These decisions will be produced in an award.
WHAT IS AN AWARD?The mechanism by which the surveyors produce their decision is a document called an award. The award sets out rights and duties of both owners. It lays down hours of working, protection for neighbouring premises, rights of entry, includes a Schedule of Condition, fees,detailing of works with attached drawings and allows for future awards. The award becomes absolute fourteen days after it is issued to the parties and within that time it can be challenged in the County Court only if it was fundamentally invalid in some way.
WHO PAYS ?
COSTS OF THE WORKS
Generally all costs are paid by the Building Owner except where:-
- Joint use of a new or rebuilt wall take place, in which case costs are bourne in proportion to the use made by each party.
- Where works are necessary as a result of defect in which case, again, costs are bourne in relation to use made by each party.
- Where the Adjoining Owner requires works to be carried out for their benefit they must pay any additional costs incurred.
Serving Notice and agreement of Awards obviously result in professional fees being incurred by the parties to the dispute. The Act permits the Surveyors to be appointed to make directions on costs and assess fees as they feel fit. Costs do not only cover fees of the appointed Surveyors but, where applicable, also fees of engineering and other consultants.
Generally, it is only reasonable that all fees are met by Building Owners as their desire to carry out the work has lead to the appointment of Surveyors in the first place.
BUILDING REGULATIONS & PLANNING ADVICE
Party wall work must be lawful which mean planning permission (if required) and Building Regulations must be obtained for the work being carried out, otherwise the exercise of the party wall right will be illegal.
However, there can be a cross-over with Building Control functions in respect of controlling building design, the Party Wall etc. Act 1996 is distinctly independent of Building Regulations.
Building Control approve building design and ensure no damage is caused to adjoining properties from the ‘finished’ construction.
However, its function does not extend to controlling and supervising the activities of the construction process, which, if not dealt with, can cause the adjoining owner unnecessary inconvenience, unnecessary property interference and damage. Also, it could prejudice the neighbours’ future rights.
It is the Party Wall etc. Act 1996 that deals with these concerns. Thus it is Party Wall Surveyors who assess and ensure that the manner and execution of the design is appropriate and protective measures are specified.
If there is a less intrusive design and/or manner of execution the Party Wall Surveyor(s) will insist on the alternative. Building Control cannot give this level of protection.
Works such as excavations are often started and completed by the time a Local Building Control Officer or an Approved Inspector get to site and make their inspection. It can be alarming to visit a property and find a 1-metre deep trench excavation spanning the entire length of the neighbours flank wall founded on a shallow foundation, or to find a one-storey basement excavated in a garden without any temporary support in place.
In these cases Building Control and Party Wall Surveyors can work together.