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Party Walls: removing barriers to development

A party wall is a wall that stands on the lands of two or more owners. The extent of an owner's rights to carry out work to a party wall, and the extent of an adjoining owner's rights to be protected from the effects of such work, always have the potential to become contentious issues. Anyone whose neighbour has carried out significant building works will recognise the importance of the legal regulation of work to party walls.

Relevance

The key legislation governing this area of law - the Party Walls etc Act 1996 ("the Act") - has never been so relevant. In the UK, by 2030, 92.2% of the population will be living in our urban centres. These cities are increasingly overcrowded. In the current economic climate, many homeowners seeking additional space would far sooner extend and develop their current home than buy, and pay stamp duty on, a new home. Improving, not moving, is for many the current reality.

Recent decisions such as Coventry v Lawrence [2014] UKSC 46 (No 1) and Scott v Aimiuwu [2015] unreported suggest a legal context in which the Courts place emphasis on the rights of developers to develop.

But how can a homeowner develop their property if this will entail work to a party wall, a wall in which an adjoining owner also has a legal interest? The intention of the Act is to facilitate development work in the context of the legal relationship between neighbouring owners, setting out a framework for the relevant notices, constructive dialogue, collaboration and if necessary the satisfactory resolution of disputes by impartial surveyors.

Scope and operation of the Act

The Act covers the following types of works:

  • New construction on or at the boundary of two or more properties (section 1 of the Act);
  • Work to existing party walls or party structures (section 2 of the Act); and
  • Excavation adjacent to a building or structure of an adjoining owner (section 6 of the Act), subject to the following specific requirements relating to depth and proximity of the excavation:
    • If the excavation is within a distance three metres (measured horizontally) of an adjoining owner's building, and any part of the excavation will extend lower than the adjoining owner's foundations; or
    • If the excavation is within six metres of an adjoining owner's building and any part of the excavation would meet a line drawn downwards at a 45 degree angle from the base of the adjoining owner's foundations.

Specific examples of such works are given in the official DCLG explanatory booklet relating to the Act and include:

  • Building a new wall or structure at the boundary of two properties;
  • Repairs to or rebuilding a party wall; and
  • Cutting into a party wall, for example as part of a loft or basement conversion.

The key concepts are defined within section 20 of the Act.

"Owner" includes any person, company or other body holding the freehold title, or holding a leasehold title for a period exceeding one year, or a party under contract to purchase such a freehold or leasehold title, and also includes any party entitled to receive rents or profits from the property. This means that there may be more than one owner of a single property.

"Adjoining Owner" means any owner or occupier of land adjoining that of the building owner.

"Party Wall" includes any wall which forms part of a building and stands on land belonging to different owners; and also any wall which may stand wholly on the land of one owner, but is used by two or more owners to separate their buildings.

"Party Fence Wall" means a wall that is not part of a building but which stands on the lands of different owners and is used for separating such adjoining lands. The definition does not include wooden fences, for example, or hedges.

"Party Structure" includes Party Walls, as defined, but is defined more widely to include floor partitions and other structures separating buildings or parts of buildings.

The process under the Act

The statutory regulatory process under the Act begins with service of the appropriate notice. If a building owner, as defined by the Act, intends to carry out works which fall within the scope of sections 1 (new building), 2 (repair) or 6 (excavations) of the Act, as described above, then that owner must give notice to all adjoining owners of its intentions, setting out details of the proposed works. Failure to give notice may leave the owner vulnerable to an injunction brought by an adjoining owner to stop the works.

Effective communication with neighbours should be recognised as crucial to any successful development, even in relation to those elements of the works that are not covered by the Act - the wider scheme not adjacent to the neighbour's land, and the inevitable vibration and noise interference that can cause tempers to fray. The more detail that a building owner can give in its notice, and the effectiveness with which the plans are communicated to neighbours, can make the difference between a developer avoiding the need for a party wall award altogether, or the process degenerating into a dispute.

The minimum length of notice required for the works is longer in relation to party structures - two months’ notice is required in relation to such works, but a minimum of one month's notice is required in relation to party walls or excavation works.

Following receipt of the building owner's notice, the adjoining owner has the choice of whether to indicate its consent to the works within 14 days of the date on which the notice was served. If the adjoining owner consents, then the building owner may proceed with the works as described in the notice and the need for a party wall award is avoided.

If following receipt of the notice the adjoining owner does not actively signify its consent within the required time, or actively dissents, then a party wall award must be agreed before works can commence. The Act provides that the parties may jointly appoint an "agreed surveyor"; or each party appoints their own, in which case those two surveyors must additionally agree on the appointment of a "third surveyor", empowered to resolve disputes. Each surveyor must be appointed in writing, and they perform a statutory role - their function is not to act on behalf of the owner who appointed them. This can appear counter-intuitive and it is the role of an owner's legal advisors to manage their expectations accordingly. 

The appointed surveyor or surveyors have wide discretion to determine all matters relating to the proposed works, most obviously the timing and manner of their execution. Either party may appeal to the County Court, within 14 days of service of the award, to have the award amended or rescinded; but after the expiry of that 14 day period the award is binding on the parties and conclusive in relation to the matters addressed in the award.

Pitfalls

Reaching agreement with the adjoining owner under the Act does not remove the possible need to apply for planning permission and/or comply with building regulations, and vice versa - complying with the Act may also be just one element of a wider process.

Identifying adjoining owners may be relatively simple through the Land Registry but additional investigation may be required to establish the identity of any unregistered owners.

The building owner's notice must fully and accurately describe the works being carried out. Any errors may leave the notice vulnerable to subsequent challenge if, for example, the adjoining owner subsequently asserts that its consent did not cover the works actually carried out.

It is best practice for an adjoining owner to insist that a schedule of condition is agreed (and annexed to any party wall award) in relation to any structures on its side of the boundary that may be affected by the building owner's works. This is in the interests of both parties, to avoid subsequent disputes relating to damage to the adjoining owner's property as a result of the building owner's works.

Do party wall awards bind successors in title and if so to what extent? The Act does not expressly consider the position of successors in title at all…

Legislative Context

The Party Wall etc Act 1996, supported by a number of Statutory Instruments, governs the law relating to party walls. The Act closely follows the provisions of the London Building Acts, extending long established rules of practice which had applied to inner London to cover the whole country. There are no plans to amend the Act.

This article first appeared in Estates Gazette in January 2018.

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