Thank you for taking the time to visit Stokemont’s informative blog post. In this week’s surveying blog, we will be looking into frequently asked questions concerning the Party Wall etc Act 1996.
Party Wall Surveying procedures can often be misunderstood with various sources of information available from a Google search, taking this into account, we have addressed some of the most common questions we’ve had over the years.
Can my Neighbour gain access to my land under the Party Wall etc Act?
In short, the answer is yes.
Section 8 of the Party Wall Act deals with access and is relatively clear in its relevance and approach. Under section 8 of the Act, a Building Owner who desires to carry out works which may require access to the neighbouring land or property which includes but is not limited to:
• Carrying out repairs to a boundary wall or fence by the boundary
• Demolishing and rebuilding a party fence wall
• Underpinning a wall or structure within proximity of the boundary
• Building a new wall up to or on the boundary, for example, to accommodate an extension
The works listed above would provide a Building owner with the legal right of access to the adjoining land or property following the service of the notice.
The Act specifies that notice under section 8 must be served to notify the neighbour of these works, with a minimum of 14 days being the period. Once the 14 days have lasted, the Building Owner can proceed to access the land or property notified. Likewise, if neighbours are on talking terms, have confirmed receipt of the notice and are happy to allow access before the 14-day statutory period lapses, this is also permitted.
Should I serve a Party Wall Notice By Recorded Delivery?
Generally speaking, the Royal Mail 1st class Postage Service is relativity reliable, and we have no little to no issues in this regard.
It may be considered that recorded delivery may be the best approach, however, we strongly would suggest that this method should be avoided as if the recipient isn’t present during the delivery attempt, it’s impossible to a establish if the notice had been validly served.
We would advise that proof of service be opted for in a situation such as this certifies that the post had successfully reached its destination. This way once the statuary allowance of 16 days, 14 days, plus a two-day grace period allowing for postages runs its course, the statutory procedures can be followed which would result in further notice being served in accordance with Section 10(4) of the Act.
What is a Party Wall Agreement?
A Party Wall Award, also commonly referred to as a Party Wall Agreement, is essentially the finalising document bringing closure to the procedure and is the legal document which is agreed upon by Party Wall Surveyors upon appointment under Section 10 of the Act on behalf of building owners and the adjoining owner.
At this phase, of the procedure, a building owners’ surveyor will draft the legal agreement which would be tailored to include all the necessary clauses concerning the construction proposal.
An award may determine/include but is not limited to:
• The right to execute any works
• Time executing those works in relation to the Act
• The means of protecting the adjoining property
• Methodology of those works – method statement
• It should also include a record of the condition of the adjoining property in the form of a Schedule of Condition Report before the work begins. As previously discussed, this is desirable as it can assist in identifying and attributing any damage to adjoining properties for instance.
Who pays for the Party Wall Surveying Cost?
Under the Party Wall etc Act 1996, it is the Building Owner, who is the owner undertaking the works, who is liable for the reasonable Party Wall Surveying costs.
These costs include, however, are not limited to, the Surveyor’s costs, inspection costs, and the agreement of a Party Wall Award
What are my Party Wall rights?
Building Owner Rights
Section 1
Under section 1, the Act provides a building owner with the right to:
- Build a flank wall up to the line of junction wholly on their land with access legally being permitted on the adjoining land if necessary to complete the building works.
- To build a wall astride the boundary line dividing two or more parcels, therefore making the wall a Party Fence wall, which essentially would mean the wall would sit equally across two parcels of land. However, consent would need to be provided by the adjoining owner in this respect.
Given the works are not to be directed to the Party Wall, Notice would need to be served 1 month before the planned works.
Section 2
Under section 2, the Act provides a building owner who wishes to carry out work to an existing party wall additional rights which go beyond ordinary common law rights.
Section 2 of the act lists what work can be done, the most commonly used rights under section 2 are as follows:
- To cut into a party wall to insert steel beams (for example to facilitate a loft conversion)
- Cut off projections from a party wall (for example, to remove a chimney breast)
- Raise the height of a party wall
- Demolish and rebuild a party wall
- Underpin the whole thickness of a party wall
- Carry our repairs to a party wall
Given the works are to be directed to the Party Wall, Notice would need to be served 2 months before the planned works.
Section 6
Under section 6 of the Act, a Building owner has the right to:
- Excavate, or excavate for and erect a building or structure, within a distance of three metres measured horizontally from any part of a building or structure of an adjoining owner and to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner.
Given the works are not to be directed to the Party Wall, Notice would need to be served 1 month before the planned works.
Adjoining Owner Rights
Adjoining Owners have serval reasonable rights under the Act. Furthermore, additional rights may be implemented into the Party Wall Agreement by Surveyors appointed under section 10 if necessary.
All rights are generally in place to avoid any inconveniences or obstacles for an Adjoining owner as a result of a neighbour wanting to carry out construction works.
- The rights that an adjoining owner included are not limited to:
- The right to appoint an independent or agreed surveyor in accordance with section 10 to resolve any dispute under at the sole cost of the building owner.
- The right to request that reasonable or necessary measures be taken to protect their property from foreseeable damage and intrusion of privacy.
- The right not to endure any unnecessary inconveniences.
- The right to be compensated for loss or damage caused by the agreed works.
- The right to request security for expenses concerning works of significant complexity, which would need to be deposited into an escrow account. This would allow funds to be available against a potential loss if works are not completed or halted for an unreasonable length of time.
Who should serve Party Wall Notices?
Generally speaking, Party Wall Notices can be drafted and served by a building owner wishing to proceed with the works or any individual. However, when it comes to an individual being appointed under section 10 of the Act as the Party Wall Surveyor on behalf of a building owner, the individual can be anyone who isn’t party to the matter under the Act ;
A “surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act.
This essentially means that building owners cannot act as their surveyors, and neither can family members who reside within the same subject property.
In my experience appointments as well as notices have been drafted and served on behalf of building owners by Architects, Structural Engineers, Builders, Solicitors, Lawyers, and Doctors.
The key would be for the individual drafting and serving the notice to have a favourable level of knowledge concerning the Party Wall etc Act 1996 and construction which would most likely mean the notice served would be valid
What happens if you don’t get a Party Wall Agreement?
Several problems can come with not having a party wall agreement in place from the perspective of both a Building Owner and an Adjoining Owner.
Building Owner:
- The lack of protection against false claims of damage due to an absence of a Schedule of Condition report.
- Possible major delays to works if the adjoining owner proceeds to obtain Party Wall Injunction via the courts.
- Major cost implications if works have to halt.
- Tension with neighbours.
- No legal means of access to the neighbouring land if necessary. Section 1 of the Act legally provides access to the adjoining land if necessary to complete works.
- A lack of means of arbitration.
Adjoining Owner:
- The lack of protection against damage that may be caused due to the neighbouring works.
- The lack of a Party Wall Agreement may result in issues when endeavouring to sell your property as a purchaser would feel hesitant to buy into a property with no protections in place.
- Possibility of incurring the cost for rectifying damages that you did not cause.
- No specified limitations/restrictions on construction working hours or the use of pneumatic tools concerning the Party Wall.
Can I act as my own Party Wall Surveyor?
When it comes to an individual being appointed under section 10 of the Act as the Party Wall Surveyor on behalf of a building owner, the individual can be anyone who isn’t party to the matter as in accordance with Act ;
A “surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act.
This essentially means that building owners cannot act as their surveyors, and neither can family members who reside within the same subject property.
Here at Stokemont, we would recommend that Surveyors or qualified property professionals who deal with Party Wall matters daily and are specialists within this area should be instructed and appointed to deal with Party Wall matters as this would ensure that one of the most prized assets is in safe hands.
