Building Owners - Part 1
Work on existing party walls (section 2 of the Act)
What are my rights under the Act if I want to do work on an existing party wall?
The Act provides a Building Owner, who wishes to carry out various sorts of work to an existing party wall, with additional rights going beyond ordinary common law rights.
Section 2 of the Act lists what work can be done. The most commonly used rights are:
- to repair a party wall
- to insert a damp proof course
- to underpin the whole thickness of a party wall ( for example to prevent settlement)
- to cut into a party wall to take the bearing of a beam (for example for a loft conversion).
- to raise the height of a party wall (for example adding another storey).
- to raise a party wall downwards (for example to form a basement)
- to demolish and rebuild a party wall (for example if it is structurally defective).
- to underpin the whole thickness of a party wall (for example to form a basement)
- to cut off projections from a party wall (or from an adjoining owner’s boundary or external wall) if necessary to build a new wall adjacent to that wall (for example removing a chimney breast).
If you intend to carry out any of the works mentioned in section 2 of the Act, you must inform all Adjoining Owners. You must not even cut into your own side of the wall without telling the Adjoining Owners of your intentions.
The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to stop your work through a court injunction or seek other legal redress.
An Adjoining Owner cannot stop someone from exercising the rights given to them by the Act, but may be able to influence how and at what times the work is done.
The Act also says that a Building Owner must not cause unnecessary inconvenience. This is taken to mean inconvenience over and above that which will inevitably occur when such works are properly undertaken.
The Building Owner must provide temporary protection for adjacent buildings and property where necessary. The Building Owner is responsible for making good any damage caused by the works or must make payment in lieu of making good if the Adjoining Owner requests it.
Where party walls and structures are modified, repaired, or demolished and rebuilt (s.2(2)(a) and (b) of the Act) section 11(4) and (5) provides that the cost of the work shall be shared where the work is necessary on account of defect or want of repair, in proportion to the use each party makes of the structure or wall and the responsibility of each for the defect or want of repair concerned.
Where use is made of party walls previously built at the cost of the Adjoining Owner, the Act makes provision for a fair payment to be made to the Adjoining Owner.
Some works on a party wall may be so minor that service of notice under the Act would be generally regarded as not necessary.
- drilling into a party wall to fix plugs and screws for ordinary wall units or shelving
- cutting into a party wall to add or replace recessed electric wiring and sockets
- removing old plaster and replastering
may all be too minor to require a notice under the Act.
However, the key point is whether your planned work might have any possible consequences for the structural strength and support functions of the party wall as a whole, or cause damage to the Adjoining Owner's side of the wall. If you are in doubt about whether your planned work requires a notice you might wish to seek advice from a qualified building professional.
Essentially, an Adjoining Owner is anyone who is an owner of land, buildings or rooms adjoining those of the building owner.
Also, for the purposes of section 6 of the Act a property shall be deemed to be adjoining if it is within the relevant distance even if it is nor actually adjoining.
The adjoining property may have a freehold owner, or a leasehold owner all of whom may be an 'Adjoining Owner' under the Act.
Where there is more than one owner of the property, or more than one adjoining property, it is your duty to notify all Adjoining Owners.
It is obviously best to discuss your planned work fully with the Adjoining Owners before you (or your professional adviser on your behalf) give notice, in writing, about what you plan to do. If you have already ironed out possible snags with your neighbours, this should mean that they will readily give consent in response to your notice. You do not need to appoint a professional adviser to give the notice on your behalf, however if you do you should satisfy yourself as to the experience and professional qualifications of your adviser.
Whilst there is no official form for giving notice under the Act, your notice will need to include the following details:
- your own name and address (joint owners must all be named, e.g. Mr A & Mrs B Owner)
- the address of the building to be worked on (this may be different from your main or current address)
- a full description of what you propose to do (it may be helpful to include plans, and you must do so in respect of excavation works, but you must still describe the works)
- when you propose to start (which must not be before the relevant notice period has elapsed).
The notice should be dated and it is advisable to include a clear statement that it is a notice under the provisions of the Act.
You may deliver the notice to the Adjoining Owner(s) in person or send it by post. Alternatively, you may address the notice to "The Owner", adding the address of the premises, and deliver it to a person on the premises, or, if the neighbouring property is empty, fix it to a conspicuous part of the premises.
At least two months before the planned starting date for work to the party wall. The Adjoining Owner may agree to allow works to start earlier but is not obliged to even when agreement on the works is reached. The notice is only valid for a year, so do not serve it too long before you wish to start.
A person who receives a notice about intended work may:
- give his consent in writing, or
- refuse to consent to the works proposed (the dispute resolution procedure then comes into play), or
- do nothing.
If, after a period of 14 days from the service of your notice, the person receiving the notice has done nothing, a dispute is deemed to have arisen.
As suggested, your notice should not come as a surprise. If you have already ironed out possible snags with your neighbours, this should mean that they will more readily give consent in response to your notice.
It should be noted that where consent is given you are not relieved of your obligations under the Act, for example to avoid unnecessary inconvenience or to provide temporary protection for adjacent buildings and property where necessary. The notice of consent is simply confirmation that, at that time, there is nothing ‘in dispute’. Should a difference arise at a later date (for example in respect of damage caused) the procedure below then comes into play.
A person who receives notice about intended work may, within one month, give a counter-notice setting out what additional or modified work he would like to be carried out for his own benefit, and accompanied by all necessary particulars. A person who receives a notice, and intends to give a counter-notice, should however let the Building Owner know within 14 days.
If you receive a counter-notice you must respond to it within 14 days otherwise a dispute is deemed to have arisen.
The best way of settling any point of difference is by friendly discussion with your neighbour. Agreements should always be put in writing.
If you cannot reach agreement with the Adjoining Owners, the next best thing is to agree with them on appointing what the Act calls an "Agreed Surveyor" to draw up an "Award". The surveyor must be a person agreed between the owners to act.
Alternatively, each owner can appoint a surveyor to draw up the award together. The two appointed surveyors will select a third surveyor (who would be called in only if the two appointed surveyors cannot agree or either of the owners or either surveyor calls upon the third surveyor to make an award).
In all cases, surveyors appointed or selected under the dispute resolution procedure of the Act must consider the interests and rights of both owners and draw up an award impartially.
Their duty is to resolve matters in dispute in a fair and practical way.
Where separate surveyors are appointed by each owner, the surveyors must liaise with their appointing owners and put forward the respective owners' preferred outcome. However, beyond that the surveyors do not act as representatives for the respective owners. They must always act consistently with the terms of the Act to reach a fair and impartial award.
The term "surveyor" under the Act can include any person who is not a party to the matter. This means that you can appoint almost anyone you like to act in this capacity. However, the person should not have already been engaged to supervise the building work. The surveyor should also have a good knowledge of construction and of procedures under the Act. You cannot however act for yourself.
Chartered Surveyors with experience of acting as a Party Wall Surveyor are the obvious choice.
The surveyor (or surveyors) will settle the matter by making an "award" (also known as a "party wall award"). This is a document which:
- sets out the work that will be carried out
- says when and how the work is to be carried out (for example to limit continuous periods of time when excessively noisy work can be carried out);
- specifies any additional work required (for example necessary protection to prevent damage);
- often contains a record of the condition of the adjoining property before the work begins (so that any damage to the adjoining land or buildings can be properly attributed and made good);
- allows access for the surveyor(s) to inspect the works while they're going on as may be necessary (to see that they are in accordance with the award).
It is a good idea to keep a copy of the award with your property deeds when the works are completed.
The surveyor (or surveyors) will decide who pays the fees for drawing up the award and for checking that the work has been carried out in accordance with the award. Usually the Building Owner will pay all costs associated with drawing up the award if the works are solely for his benefit.
The Award is final and binding unless it is rescinded or modified by a county court on appeal. Each owner has 14 days from service of the award on him to appeal to the county court against the award.
An appeal should not be undertaken lightly, and an unsuccessful appellant may incur an award of costs against him. An owner considering an appeal may well wish to seek legal advice.
Who pays for the building works?
Your agreement with the Adjoining Owner, or the award in the event of a dispute, will set this out.
The general principle in the Act is that the Building Owner who initiated the work pays for it if the works are solely for his benefit. However, there are cases where the Adjoining Owner should pay part of the expense of the works. This is set out in section 11 of the Act and covers for example:
- where work to a party wall is needed because of defects or lack of repair for which the Adjoining Owner may be responsible (in full or in part).
- where an Adjoining Owner requests that additional work should be done for his benefit.
If a dispute has arisen and the neighbouring owner refuses or fails to appoint a surveyor under the dispute resolution procedure, you will not be able to appoint an "agreed surveyor".
In these circumstances you can appoint a second surveyor on the neighbouring owner’s behalf, so that the procedure can go ahead. Your own surveyor will advise you on the appointment of a second surveyor on behalf of the Adjoining Owner.
Under the Act, an Adjoining Owner and/or occupier must, when necessary, let in your workmen and your own surveyor or designer etc., to carry out works in pursuance of the Act (but only for those works), and allow access to any surveyor appointed as part of the dispute resolution procedure.
You must give the Adjoining Owner and occupier notice of your intention to exercise these rights of entry. The Act says that 14 days' notice must be given, except in case of emergency. If access is necessary to carry out the notified works you may wish to include this requirement in the notice that you serve when seeking consent to carry out the works, so as to avoid any dispute in this respect at a later stage when work is underway.
It is an offence, which can be prosecuted in the magistrates' court, for the occupier or other person to refuse entry to or obstruct someone who is entitled to enter premises under the Act, if the first-mentioned person knows or has reasonable cause to believe that the latter person is entitled to be there.
If the adjoining property is closed (for example an unoccupied property) your workmen and your own surveyor or designer etc. may enter the premises by breaking open a fence or door, if they are accompanied by a police officer after following the Act’s procedures.
You should discuss access for works with your neighbour. It is often in the best interests of the Adjoining Owner to allow access voluntarily to build a wall or to carry out works for which there is no statutory right of access, as this will allow a better finish to the side of the wall that they will see.
Adjoining Owners' rights are described in a later article on this site. They include the right to:
- appoint a surveyor to resolve any dispute;
- require reasonably necessary measures to be taken to protect their property from foreseeable damage and for their security;
- not to be caused any unnecessary inconvenience;
- be compensated for any loss or damage caused by relevant works;
- ask for security for expenses before you start work under the Act so as to guard against the risk of being left in difficulties if you stop work at an inconvenient stage.