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Neighbour Starting Works Without a Party Wall Agreement

Jun 23, 2022

Thank you for clicking on today’s Property Surveying blog post topic. 

Through our blog posts we aim to address and discuss some of the more complicated and complex part of the property surveying work that our RICS surveyors undertake on a daily basis.

Today we are going to be taking a focussed look at party wall surveying, in particular we are going to be looking at the procedures and options that an adjoining owner has open to them if a building owner decides to commence construction works to their property.  Those construction works importantly falling under the realm of Party Wall etc. Act 1996

Furthermore, with those construction works having not been subject to a pre-worked Party Wall Notice having been served by the building owner upon the adjoining owner. 

To put this topic into context, the Party Wall etc. Act governs various different types of construction works to all properties within England and Wales.

The Act itself has three distinct sections all of which cover different types of construction works within it.

We are now going to take a brief look at the types of construction works that fall within the realm of the Act, so that you can fully understand if indeed your adjoining owner, and your neighbour, the building owner has indeed commenced party wall works.

Section 1 of the Party Wall etc. Act 1996, the construction of new walls up to, or astride the line of junction

Section 1 of the Party Wall etc. Act 1996 deals with the construction of new walls up to, or astride the boundary line. Commonly, this is going to be in the form of flank walls of rear extensions.

These flank walls, can form the flank wall of the front, rear or even a side extension.

Under the Party Wall etc. Act 1996 if indeed the building owner is planning on undertaking these types of works to their property, the law and the statute requires the building owner to serve a Party Wall Notice upon the adjoining owner a minimum of one month in advance of works commencing. 

Section 2 of the Party Wall etc. Act 1996 Works to a Party Wall, Party Structure (Floor/Ceiling) or Party Fence Wall (Garden Wall)

Under Section 2 of the Party Wall etc. Act 1996, if any works are being undertaken by a building owner to a party wall, party structure, or party fence wall. Under the requirements of the law and statute, the building owner has a legal duty to serve a Party Wall Notice on the adjoining owner a minimum of two months in advance of the works commencing. 

This section of the Act is by far and wide the largest and has the biggest scope in respect of the type of construction works it covers.

The best way to describe this is that the works are all encompassing and can include, cutting into and away from the party wall, exposing the party wall, underpinning the party wall, or undertaking any other form of works to a party wall, party structure, or party fence wall. 

Commonly these types of works tend to be ventures such as loft conversions, chimney breast removals, changes of roof coverings, internal structural works, underpinning, or repair works to garden walls. 

Section 6 of the Party Wall etc. Act 1996, Adjacent Excavations

The final section which the Party Wall etc. Act 1996 deals with is excavation which is dealt with under Section 6 of the Act. 

Under the statute and law, a building owner must serve a Party Wall Notice on an adjoining owner a minimum of one month in advance of the works commencing.

Excavations is another very common section of the Party Wall Act that is dealt with.  Generally speaking, it will deal with any foundation works that are going to be deeper than the foundation depth of the neighbouring property, however also within 6m.

With the majority of housing stock within England and Wales being on a corbel type footing, corbel footings being no more than 300mm-400mm deep and an assemblage of bricks below ground. 

Modern building regulations and requirements require new structures irrespective of their height to have a minimum of a 1m deep foundation built off mass concrete or pile type. 

This will effectively mean that any new structure is going to naturally undermine the neighbouring structure and fall in the realm of the Party Wall etc. Act 1996. 

If indeed the building owner’s works fall within the realm of the Party Wall etc. Act 1996, as set out in the title of this blog, they will have the legal requirement to serve a Party Wall Notice on the adjoining owner in advance of the works commencing.

In receipt of a Party Wall Notice, the adjoining owner will have three legal rights of response.  We are now going to look at these as follows.

Party Wall Notice Response Option 1, Consenting to the Party Wall Notice

Consenting to the Party Wall Notice effectively means that the adjoining owner is waiving the requirements and protections as set out by the Party Wall etc. Act 1996. 

The building owner will therefore be free to commence their proposed works without any of the formalities of the Party Wall etc. Act 1996 being administered or followed. 

This is by and far the most favourable outcome for the building owner, as it means that they are not susceptible to costs, nor do they have to go through the actual delays that come with the party wall procedures themselves.

Party Wall Notice Response Option 2, Dissenting to the Party Wall Notice and Appointing an Agreed Surveyor

Response option 2, is that the adjoining owner can dissent to the Party Wall Notice and appoint their own party wall surveyor.

In appointing their own party wall surveyor, the party wall surveyor’s duties will be to review the building owner’s works from the perspective and position of the adjoining owner’s property. 

The surveyor will go through the necessary steps to ensure that the risks associated with the works are as low as they can be.

Furthermore, they will administer the Act’s procedures in order to ensure that there is a suitable vessel of protection in place against the works.

Commonly these procedures will include surveyor review, a Schedule of Condition report of the adjoining owner’s property pre-works and finally the agreement of a Party Wall Award, which is a legal document which protects the adjoining owner in the event of any issue of damage above and beyond common law. 

Party Wall Notice Response Option 3, Dissenting and Appointing and Agreed Surveyor

This option is very much the same as option 2, however the only difference is that the adjoining owner will agree for one party wall surveyor to act impartially on behalf of both the building owner and the adjoining owner. 

This party wall surveyor will tasked with all of the same roles and requirements as if he were acting on behalf of one of the owners.  However, the only difference being that he is duty bound to act impartially on behalf of both.

For a building owner, this is equally a favourable outcome, as it means that the building owner is only paying for one surveyor’s fees, as opposed to two, while also ensuring that the process is handled by one surveyor, as opposed to two, thereby boding well for time efficiency. 

If indeed the building owner for whatever reason commences the works without serving a Party Wall Notice, the adjoining owner has the benefit of being able to obtain a party wall injunction. 

We have written blog posts that go into greater detail on party wall injunctions.  However, in short a party wall injunction is a legal vessel, applied by the courts, which will stop the building owner from undertaking any further works on site until the party wall procedures have been administered and followed. 

If for any reason the building owner chose to ignore the party wall injunction, it would be deemed an offence, to which the building owner could be held accountable and prosecuted. 

Party wall procedures are on face value a simple matter, however can quickly become a complicated and protracted issue, especially if there are problems surrounding notice service and validity. 

If you would like to discuss your party wall surveying procedures with our team of qualified and experienced RICS party wall surveyors, please feel free to give us a call today and we would be more than happy to assist and advise you.    

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