Boundaries and the Party Wall Act

While party wall surveyors do not have the jurisdiction to determine boundaries, we are sometimes required to authorise works which interact with a boundary. We therefore need to have a good understanding of how boundaries are determined and an awareness of when disputes do and do not prevent us from completing the task that we were appointed to complete.

Legal Boundaries

Let’s start with the basics. Official boundaries are the boundaries shown on the plan that accompanies the deeds to a property. Some plans will include ‘T’ marks which indicate who owns the physical feature (be that a wall, fence or hedge).

This should not be confused with a Title Plan which is indicative only and, as confirmed by the Land Registry, should not be used to determine legal boundaries.

Even if an owner can locate the deed plan, the boundaries may not be accompanied by exact measurements. Without measurements, even the thickness of lines on the plan can cause disagreements about exactly where the boundary lies.

Fences are not reliable indicators of legal boundaries as they drift over time. A fence might originally have been located on one or other side of the boundary or astride the boundary and which of those options applies is unlikely to have been recorded. Also, the lifetime of a timber fence is probably 20-30 years so a timber fence dividing 1930s semis will already have been replaced 4 or 5 times. How careful was the builder about erecting it in exactly the same position each of those times?

As you can see, there’s plenty of scope for disputes.

Building at the Boundary

New walls either up to or astride the boundary fall within the scope of the Act but how can surveyors authorise such works without knowing where the boundary is?

Sometimes it will be obvious. If there is an original party wall, the boundary will generally be at its centre (careful of “Type B” party walls). Most party walls are approx. 225mm thick + plaster but this can be checked my measuring back from the nearest door/window opening on the two properties that it divides. If you then measure back from the openings to the face of the party wall and transfer those measurement to the external face of the rear wall, the boundary wall be at the midpoint between the two marks.

The set up described above is likely to be shown on the plan of the proposed works, but surveyors will sometimes include a clause in the award requiring the owners (or their representatives) to agree on the position of the boundary prior to the works e.g.:

Prior to constructing the wall described in clause 2(x) of this award, agree the location of the boundary with the adjoining owner(s) and confirm with an indelible mark on the rear wall of the property.

On a related point, boundary fences are temporarily removed to allow a new wall to be built up to the edge of an owner’s land. If the fence is owned by that owner, it will not be reinstated as erecting a fence against a wall is unnecessary. If the fence is owned by the neighbour, and they want to retain it (perhaps to soften the appearance of the new wall), it can be reinstated against the new wall. An owner is not required to keep their extension back from the boundary to make space for a fence.

When the Boundary Position is in Dispute

It’s sometimes necessary to put party wall procedures on hold while a boundary dispute is resolved but, as that can be a very time-consuming process, it should be a last resort.

It’s not always necessary to know the precise boundary position to authorise works under the Act. For example, a common boundary related issue is whether the flank wall of an adjoining owner’s rear extension is built up to or astride the boundary. If the building owner wishes to cut a flashing in to that wall, they have a right to do so in both scenarios (under paragraphs 2(2)(f) and (j) of the Act). The notice/award can therefore describe the flashing without commenting on the status of the wall it is being cut in to. In that situation, I’d advocate omitting the boundary line from the award drawings.

Surveyors also have to be careful that a purported boundary dispute has not been manufactured by an adjoining owner to delay works that they object to for other reasons.

If the boundary dispute appears spurious, one course of action would be to serve an award showing the most likely boundary position (such as at the centre of the party wall) and leave the adjoining owner appeal it (as a way of bringing the boundary dispute to a head). The surveyors should make it clear in the award that they are not determining the position of the boundary.

How boundary disputes are resolved

We don’t specialise in boundary disputes here at Peter Barry but, to finish this post, I thought a quick summary of how boundary disputes are resolved might be useful in case all else fails.

These are the steps to work through:

1. Discussion between the owners (with the help of a mediator if necessary). Owners should disclose all relevant information. Once agreed, the details can be registered (at the Land Registry).
2. The owners could engage a boundary specialist to prepare a report. Again, all relevant information should be disclosed.
3. If discussion/mediation fails, there are two ways to use the Courts to resolve a boundary-related issue:

• Make an application to the Land Registry. If your neighbour objects and mediation does not resolve the matter, your case will be referred to the Land Registry Division of the First-tier Tribunal (Property Chamber).
• Issue proceedings at a County Court.

If you require advice on a party wall matter, you are welcome to contact us on 020 7183 2578 or via email.