An Owner of a terraced house wishes to convert his original first floor balcony to an additional room. The balcony is built against an original party wall which is enclosed on the Adjoining Owner’s side – the balconies were built on the same side of each house in the terrace.
Would Section 11(11) expenses be payable to the Adjoining Owner?
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.
The question refers to the wall as ‘party’ so there cannot be any question over the right of the Building Owner (let’s call him the right hand owner to avoid confusion) to enclose. It is only when there is a right to enclose that the question of Section 11(11) expenses arises.
The starting point has to be the wording of Section 11(11):
Where use is subsequently made by the adjoining owner of work carried out solely at the expense of the building owner the adjoining owner shall pay a due proportion of the expenses incurred by the building owner in carrying out that work; and for this purpose he shall be taken to have incurred expenses calculated by reference to what the cost of the work would be if it were carried out at the time when that subsequent use is made.
The contentious point is whether the section of the party wall in question was built ‘solely at the expense of the building owner’.
Presumably, being a terrace, all the properties were built by a single developer at the same time and subsequently sold off in plots. It could be argued that as the wall was originally only enclosed by the right hand owner it was built solely for the use of that owner but that ignores the fact that it forms an integral part of the right hand owner’s balcony – providing restraint for the front wall/hand rail and the left hand boundary. Besides, is ‘solely for the use’ the same as ‘solely at the expense’?
Looking at it from another angle – if the property to the left were to be demolished, say to make room for a new development, the owner would have the right to reduce the height of the section of wall in question down to 2 metres under Section 2(2)(m) of the Act – not that unlikely if it will allow more light through to the development site.
In that scenario the right hand owner could serve a counter notice as set out in Section 11(7) of the Act requiring the left hand owner to maintain the existing height of the wall but in doing so would be liable to make a contribution towards the cost of the upper section of wall that he wishes to retain – that contribution would presumably be calculated in accordance with Section 11(11).
Does it not follow that Section 11(11) expenses would be due to the left hand owner if any of the wall above a height of 2 metres were to be enclosed by the right hand owner. It would be difficult to argue against that although the expenses would be minimal if they only relate to the upper part of the wall.
A similar situation arose in Gyle Thompson & Others v Wall St Properties Ltd (1974) although in that case the party wall in question formed the boundary at the end of Gyle Thompson and his neighbours’ gardens rather than a balcony. WSP wanted to demolish their building and reduce the height of the boundary wall to 15ft so that their land could be developed. Gyle Thompson argued successfully that WSP had no right to reduce the height of the wall.
These days WSP could serve notice under Section 2(2)(m) of the current Act and force Gyle Thompson to pay to retain the wall to a greater height than 2 metres.