A pair of semi-detached houses have each been converted in to flats.
The flats are each held on long leases with the Freeholds owned by investment companies.
The owner of one of the top floor flats proposes to convert their roof space – the work requires 3 beams to be cut in to the party wall.
Which Owners should be served with a notice?
This is another question that was raised at a recent FPWS North London forum meeting which I helped to organise. I would welcome the views of other surveyors. If you are a surveyor involved in party wall matters and would like to attend future meetings please email me at firstname.lastname@example.org and I’ll keep you updated.
Cutting pockets in to a party wall to allow for the insertion of beams is covered by section 2(2)(f) of the Act but the introduction to section to states that it only applies
where lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being a party fence wall or the external wall of a building, has been erected.
The Act defines a party wall as:
(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;
A strict interpretation of the Act would therefore be that notice is only due to LH2 (assuming that his demise includes the party wall) and the Freeholder of the building that contains LH2 & LH4.
Many surveyors would argue that this is simply an error in the way the Act was drafted and so all 3 leaseholders and the Freeholders should be notified.
While that approach is fine in theory there are not many Building Owners that would willingly pay for 5 Awards when they are only legally obliged to serve 2 notices.
It also opens the way for any of the parties involved in the legally dubious Awards (or their surveyors) to call a halt to proceedings at any stage and declare the notice invalid. You can imagine that happening if one of the Adjoining Owners appointed an expensive or over officious surveyor.
It should also be noted that LH3 and the Building Owner’s freeholder would be safeguarded by the License to Alter which would normally be a condition of the Building Owner’s lease.