Thank you for clicking on today’s property surveying blog post. Today, in our weekly surveying blog post, we are going to be discussing party wall surveying.
Party wall surveying is one of the more complicated and tricky areas of surveying work that we undertake here at Stokemont. Through our informative blog posts, we aim to address these complicated topics in an easy to follow and understand approach, thereby helping both our clients and the general public understand surveying procedures.
Party wall surveying is complex in its very nature. The Act itself is a perfect cohesion between legal and construction understanding. This makes it an incredibly complicated part of the surveying world, as a party wall surveyor needs to have both legal understanding as well as a definitive understanding of construction.
One of the most difficult questions we find ourselves being asked on a daily basis here at Stokemont is if an adjoining owner (who is the legal owner neighbouring the works) has the legal right to refuse the Party Wall Agreement.
It is important to note that this blog post will look at this question from the perspective of the Party Wall Agreement, also commonly referred to as the Party Wall Award.
This Party Wall Agreement is not to be mistaken with a Party Wall Notice. A Party Wall Notice will be served at the start of the building owner’s party wall procedures and will notify and set out the building owner’s proposed plans for their overall works. The Party Wall Award, also commonly referred to as a Party Wall Agreement, is served upon the conclusion of the party wall procedures, ultimately setting out the building owner’s legal right to undertake the works, whilst also setting out various governing clauses that the building owner needs to adhere to and follow during the course of said works.
In order for a Party Wall Award to be agreed and in place, importantly Party Wall Notices must have been served. Furthermore, those Party Wall Notices must have been interpreted and deemed to be legally valid.
Once Party Wall Notices have been served, with those notices earning the right of legal validity, at that stage, the Party Wall Notices must have run their statutory duration, or alternatively, the adjoining owner must have appointed a party wall surveyor on their behalf.
If indeed the Party Wall Notice have run their statutory duration with a party wall surveyor being appointed on behalf of the non-responsive adjoining owner, then equally a Party Wall Award would have been agreed. Ultimately, whether the adjoining owner has engaged in the procedures or not, the Party Wall Award will have been agreed by one, or two, party wall surveyors. If it is indeed one party wall surveyor, then that would mean the adjoining owner has engaged in the party wall surveying procedures, as by virtue of having an agreed surveyor, you must have the adjoining owner’s surveyors agreement.
However, it is not uncommon for adjoining owners to not respond to Party Wall Notices, not receive them, or simply not want to engage in the overall procedures as a whole. If indeed this is the case, then ultimately the building owner would have gone through the necessary steps to ensure that a party wall surveyor was appointed on behalf of their non-responsive adjoining owner, that party wall surveyor having agreed the Party Wall Agreed on behalf of the appointing owner.
Once the Party Wall Award has been agreed, it gives the building owner the legal right and jurisdiction to progress their works without having to go through any further formality, procedure or delay.
It is important to note that this formality and procedure is only the procedures as set out by the Party Wall Etc Act 1996. The building owner will still need to go through the various statutory consents that are in place. These can include, however are not limited to:
- Statutory Requirements
- Planning Permissions
- Building Regulations Applications
- Listed Building Consents
- License for Alterations Applications
- Schedule of Condition undertaken
- Scaffold Licenses
- Street & Access Licenses
These are all the type of provisions that are outside the realm and jurisdiction of the Party Wall Etc Act 1996, however, nonetheless, the building owner will still have the legal requirement to progress and go through them accordingly.
The Party Wall Award itself will set out the building owner’s legal right to progress the works. Importantly, it will also set out the adjoining owner’s legal protection in the event of any issue or damage.
This legal protection comes above and beyond common law and here at Stokemont, for that reason, it is one of the most difficult and common reasons we see adjoining owner’s dissent to Party Wall Notices and require the input of party wall surveyors. The beauty and benefit of the Act is that unlike common law, an adjoining owner is highly protected against cost through the party wall procedures.
This is insofar if they were not to have the benefit of the Act on their side, then they would need to incur the cost of improving the building owner’s damage as a result of their works, proving any nuisance or issue has been caused by the building owner’s work, or any other matter that can arise through the course of the construction works. However, under the Party Wall Etc Act 1996, the adjoining owner will have a surveyor appointed on their behalf. With that surveyor’s legal duty being to resolve any bona fide disputes that the adjoining owner puts forward, and ultimately that fall within the realm of the Party Wall Etc Act 1996.
In a nutshell, an adjoining owner cannot refuse a Party Wall Agreement. Once the Party Wall Agreement has been agreed, the legal procedures as set out by the Party Wall Etc Act 1996 are followed. Party wall surveyors have been appointed, Schedule of Conditions have been undertaken and finally, Party Wall Awards have been agreed. All of these procedures are the legal steps from start to finish and once they have been followed or walked through, the building owner will have the legal right to crack on with their works, even if the adjoining owner is not agreeable to them.
An adjoining owner does have a legal right of appeal under Section 10(17) of the Party Wall Etc Act 1996 as set out as follows:
Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award and the county court may—
(a) rescind the award or modify it in such manner as the court thinks fit; and
(b) make such order as to costs as the court thinks fit.
However, the right of appeal is not the same as a refusal.
If you would like to discuss your party wall surveying procedures with our team of qualified and experienced party wall surveyors here at Stokemont, please feel free to give us a call today and we will be more than happy to assist and advise you.
