The Act provides a building owner, who wishes to carry out various sorts of work to an existing party wall, with additional rights to do so. These go beyond ordinary common law rights.
Section 2 of the Act lists what work can be done.
The most commonly used rights are:
If you intend to carry out any of the works mentioned above, you must inform all adjoining owners. You must not even cut into your own half of the wall without telling the next door neighbour of your intentions.
The act sets out the precise information you must tell your neighbour. You must tell your neighbour in writing, it is common to use a standard Party Wall Notice to make sure that this is done. You may feel happier appointing a party wall surveyor to this for you, IPWS Surveyors have a competitive fixed fee service which includes serving the correct notices.
Whilst the Act contains no enforcement procedures for failure to serve a notice 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.
A neighbour cannot stop someone from exercising the rights given to them by the Act, but he can influence how and when the work is done.
The Act says that a building owner must not cause unnecessary inconvenience when he does his works. The building owner must provide compensation for any damage and must provide temporary protection for buildings and property where necessary.
Minor works on a party wall are usually considered to be too trivial to come under the Act. Examples of minor works include:
What matters is whether your work might have consequences for the structural strength and support functions of the party wall. If you are in doubt please contact us.
An adjoining owner is anyone with an interest of greater than 12 months in the adjoining property. If the next door property is occupied by a long term tenant or leaseholder it will be necessary to notify the landlord or freeholder as well. Where there is more than one owner of the property, or more than one adjoining property, it is your duty to notify all of them, for a property divided into flats that means all flat owners and the freeholder.
It is best to discuss your planned work fully with your neighbours before you serve 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 give consent in response to your notice. You do not need to appoint a professional adviser to give the notice on your behalf but notice must be correct.
Whilst there is no official form for giving notice under the Act, your notice must include the following details:
What is required in a notice.
If the planned work to an existing structure falls under the Party Wall Act, a notice must be issued to all affected neighbouring parties.
The notice must include
The process of serving a notice under the Party Wall Act is as follows:
You may deliver the notice in person or send it by post. Where the neighbouring property is empty or the owner is not known, you may address the notice to “the owner” of the premises and fix it to a conspicuous part of the premises. You do not need to tell the local authority about your notice.
You should give at least two months before the planned starting date for work to the party wall. The notice is only valid for 12 months, 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 give a counter-notice setting out what additional or modified work he would like to be carried out.
A person who receives a notice about intended work, and intends to serve a counter-notice must let his neighbour know within 14 days.
If, after a period of 14 days from the service of your notice, the person receiving the notice has done nothing, a dispute is considered to have arisen. The procedure explained below must then be followed.
Before you serve your notices we recommend that you have all of your drawings, structural calculations and other details ready as the party wall surveyor for your neighbour will ask for these.
The best way of settling any point of difference is by friendly discussion with your neighbour. Any party wall agreements should always be put in writing.
If you cannot reach agreement with your neighbour, the next best thing is to appoint, jointly, what the Party Wall Act calls an “agreed surveyor” to draw up a “party wall award”. Preferably the agreed surveyor should not be the same person that you intend to employ to supervise your building work.
Alternatively, each neighbour can appoint a party wall surveyor to draw up the award between them. The two party wall surveyors will nominate a “third surveyor” who would be called in to arbitrate if the two party wall surveyors cannot agree.
In all cases, surveyors appointed to negotiate and prepare an award or party wall agreement must behave impartially and consider the interests of both neighbours. They do not act as advocates for each side.
The term “surveyor” is defined in the Act as 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. We recommend that you appoint a competent and experienced IPWS Surveyor. IPWS Surveyors have chartered and Professional surveyors experienced in party wall matters.
It is suggested that you and your neighbour do not choose the person you have engaged to supervise the building works to be the “agreed surveyor” – it is difficult to be the person responsible for ensuring the completion of the work at the same time as giving full regard to the rights of the neighbours.
The party wall surveyor (or surveyors) will prepare an “award” (also known as a “party wall award” or sometimes known as a “party wall agreement”). This is a document which:
It is a good idea to keep a copy of the award with your property deeds.
The 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 person who undertakes the work will pay all reasonable costs associated with drawing up the award.
Sometimes other professionals are called into to advise – for instance structural engineers sometimes need to check complex structural calculations and proposals when the work is complicated. This often happens when a basement is planned. The surveyors will decide who pays the fees and included this in the party wall award, again it is usually the person doing the work who pays these costs.
Either side has 14 days to appeal to the county court against an award. An appeal should only be made to the county court if an owner believes that the surveyors have acted beyond their powers. Sometimes if the work changes or you do something different the surveyors will agree an “Addendum Award” to cover this.
Your agreement with the neighbouring owner, or the award in the event of a dispute, will set this out.
The general principle in the Party Wall Act is that the building owner who initiated the work pays for it. However, there are cases where the adjoining owner may pay part of the cost, for example:
Where the dispute resolution procedure is called upon, the award may deal with apportionment of the costs of the work. The dispute procedure may be used specifically to resolve the question of costs.
If a dispute has arisen and the neighbouring owner refuses to appoint a surveyor within a set time period then you can appoint a party wall surveyor on his behalf so that the procedure can go ahead. You cannot appoint an agreed surveyor in this instance.
Under the Act, an adjoining occupier must, when necessary, let in your workmen, your own surveyor or architect etc., and any surveyors 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 usually be given.
It is an offence, which can be prosecuted in the magistrates’ court, to refuse entry to or obstruct someone who is entitled to enter premises under the Act, if the offender knows that the person is entitled to be there.
If the adjoining property is empty, your workmen and your own surveyor or architect etc. may enter the premises if they are accompanied by a police officer!
If there is a risk that you will be left in difficulties if the building owner stops work at an inconvenient stage, you can ask him, before he starts work, to make available an amount of money that would allow you to restore the status quo if he fails to do so. The money remains his throughout, but if, for example, you need to have a wall rebuilt, you can draw on that security to pay for the rebuilding. The details of this will be resolved by the party wall surveyors and included in the party wall award.
For further help and advice please contact us.
For more information regarding the act please visit the government legislation website www.legislation.gov.uk/ukpga/1996/40/contents