In today’s Property Surveying blog post topic we are going to be looking at party wall surveying procedures.
In this particular blog post topic, we are doing to be looking at the scenarios and legalities that come into play when a property is being purchased or sold.
One of the relatively common and typical questions we find ourselves asked here at Stokemont, is at what stage a building owner can serve a Party Wall Notice on their adjoining owner.
In many cases, this question will result from a speculative building owner who has got big development plans for the property that is being purchased.
In order to get the ball rolling as soon as they can, they will often want to serve the Party Wall Notice as soon as possible so that they are chipping away at the statutory notice period as set out by the Party Wall etc. Act 1996.
It also gives them the opportunity to get the party wall procedures concluded thereby enabling them to crack on with the works with the shortest possible delay.
We had a recent situation whereby a situation such as this happened and a Notice was served upon the adjoining owner prior to the purchaser being the legal owner.
The scenario surrounding this was quite particular, as the purchaser had gone through all the necessary pre purchase survey requirements, had planning permission in place for the proposals, and contracts had been exchanged.
However, the Party Wall Notice was served prior to the purchaser actually being considered a building owner under the Party Wall etc. Act.
In order to fully understand this let’s take a look at what the Party Wall etc. Act 1996 sets out in its section that deals with interpretation.
Section 20 of the Act confirms:
In this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them—
“adjoining owner” and “adjoining occupier” respectively mean any owner and any occupier of land, buildings, storeys or rooms adjoining those of the building owner and for the purposes only of section 6 within the distances specified in that section;
“appointing officer” means the person appointed under this Act by the local authority to make such appointments as are required under section 10(8);
“building owner” means an owner of land who is desirous of exercising rights under this Act;
“foundation”, in relation to a wall, means the solid ground or artificially formed support resting on solid ground on which the wall rests;
“owner” includes—
(a) a person in receipt of, or entitled to receive, the whole or part of the rents or profits of land;
(b) a person in possession of land, otherwise than as a mortgagee or as a tenant from year to year or for a lesser term or as a tenant at will;
(c) a purchaser of an interest in land under a contract for purchase or under an agreement for a lease, otherwise than under an agreement for a tenancy from year to year or for a lesser term;
“party fence wall” means a wall (not being part of a building) which stands on lands of different owners and is used or constructed to be used for separating such adjoining lands, but does not include a wall constructed on the land of one owner the artificially formed support of which projects into the land of another owner;
“party structure” means a party wall and also a floor partition or other structure separating buildings or parts of buildings approached solely by separate staircases or separate entrances;
“party wall” means—
(a) a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and
(b) so much of a wall not being a wall referred to in paragraph (a) above as separates buildings belonging to different owners;
“special foundations” means foundations in which an assemblage of beams or rods is employed for the purpose of distributing any load; and
“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.
The key element within Section 20 is as follows:
(c) a purchaser of an interest in land under a contract for purchase or under an agreement for a lease, otherwise than under an agreement for a tenancy from year to year or for a lesser term;
The key thing to note is that while the Party Wall etc. Act does deal with building owners who are currently the legal owners of the property it also deals with owners who are under a contract to purchase.
From an answering perspective, it can therefore be easily interpreted that this would effectively mean that any purchaser who is under contract to proceed with the sale to ultimately become a building owner would effectively be afforded the rights that the Party Wall etc. Act 1996 bestows upon them.
However, bearing in mind the Act came into power in 1996 it is important to note that at the time of its publication it was relatively limited in respect of challenge, interpretation or administration.
A key case law which sheds light onto this matter is Baker v Craggs.
While this case law doesn’t directly deal with party wall procedures, it does in fact set out that a buyer does not become a legal owner of a property until its purchase is registered at the Land Registry.
The case itself involved complex right of way, purchase of land plots and multiple registrations to the Land Registry.
However, it nonetheless does in our opinion here at Stokemont carry weight into the all important discussions surrounding the Party Wall etc. Act 1996 and the definition of building owners.
Our take on this topic, here at Stokemont, is that in order to be a legal owner of the property you must have exchanged and be legally registered on the Land Registry Title Deed.
If you would like to discuss party wall surveying procedures with our team of qualified and experienced party wall surveyors here at Stokemont give us a call today and we will be more than happy to assist you.
