The Party Wall Act – Common Misunderstandings
Monday, 10th July 2023
Party Walls | Surveying
The Party Wall etc. Act 1996 has been with us for nearly thirty years but it is becoming clear that a large section of the public still has a tenuous grip on its details. As leading party wall surveyors in London, we thought it might be helpful to address some of the many myths and misconceptions, so I have outlined a few of the most common misunderstandings below:
1 – My extension will be on my own land, which means the Party Wall Act does not apply.
Turn to Section 6 of the Party Wall Act where it goes into detail about adjacent excavations. In practical terms, this means that if you are digging within your own boundaries, the Act recognises that there is a potential risk to your neighbour’s foundations. Specifically, to fall within the scope of the Act, your proposed works must include excavation within 3 metres of either a neighbouring or shared structure and to a greater depth than the base of the foundations to that structure. This is extended to 6 metres if your foundations are particularly deep – such as piled foundations.
2 – My neighbour has consented to the works, so I don’t have to serve a Party Wall Notice.
This is not true. Consent cannot be given under the Act until notice is served. Even if your neighbour has indicated that they will consent to your proposed works, the Building Owner must still serve the notice as per the statutory requirement. They will then have 14 days in which to confirm their consent in writing. Following the procedure to the letter will ensure that the Adjoining Owners’ rights are unaffected if damage should occur and in case they wish to appoint a surveyor later in the process.
3 – The best way to deal with a neighbour who has gone ahead with building works without serving notice is to produce a retrospective award.
No, the Party Wall Act includes no provision for notices to be served or awards to be made retrospectively. In previous cases, the courts have confirmed that work can be authorised retrospectively but only if the surveyors feel that it is capable of being authorised – that certainly won’t be the case if the works have caused damage. If a neighbour has already completed the notifiable part of their work, it will be a matter of dealing with any consequences – such as damage to the adjoining owner’s property. If the neighbours cannot agree, legal redress will have to be sought in court.
4 – An Adjoining Owner can stop their neighbour from encroaching over the boundary with their foundations.
A Building Owner can build right up to the boundary line and project their footings beyond it, if they can show that it is necessary. Whenever I tell an adjoining owner this, their next question is always: “But what if I want to build an extension in the future?”. The short answer is that if they were to build a similar extension in the future, they would have the right to cut off the part of their neighbour’s foundations that project, subject to serving the appropriate notice, or connect onto them. In situations such as this, it is best for the neighbours to reach an agreement to build a single wall astride the boundary and use it as a party wall between the extensions – although I appreciate that is often easier said than done.
5 – An Adjoining Owner can refuse their neighbour access to carry out their works.
Section 8 of the Party Wall Act deals with access. Depending upon the nature of the work, access is permitted, subject to a 14-day notice period. It must be shown that there is provision for access under the Act (it only applies to certain kinds of work) and that it is necessary. If the answer to both questions is yes, then it must be granted. A Building Owner wishing to enforce their right of access over a non-compliant neighbour need not bother with court. In one of the more colourful sections of the Act, the Building Owner is given the right to “break open any fences or doors in order to enter the premises… if accompanied by a constable or other police officer”!
6 – My neighbour didn’t reply to my notice, so I am free to start work.
No, this is not the case. The 14-day period referred to in Section 5 of the Act is the time in which the Adjoining Owner must consent. If they do not consent by the end of the 14-day period, they are deemed to have dissented and must appoint a party wall surveyor. If they fail to appoint a surveyor with 10 days of a further reminder being sent, the Building Owner must appoint somebody on their behalf.
7 – The party wall award covers all of the works being undertaken.
The Act is very specific on the rights it provides and therefore the works that can be authorised in a party wall award. These are set out in Sections 1, 2 and 6 of the Act. A Building Owner might be constructing a large rear extension but if it is set back slightly from the boundary, then it is only the excavation of the foundations that will be covered in the award. This has two practical implications once works starts on site: The working hours included in the award only apply to works covered by the Act (Local Authority hours apply to the other works), and appointed surveyors can only determine matters relating to those works.
We’ve covered more commonly asked questions in the Party Wall FAQs section, which is worth looking at. For specific questions about any building work affecting a party wall, whether you are the Building Owner or an Adjoining Owner, please do not hesitate to contact the team at Peter Barry Surveyors for expert advice and guidance.
If you need to learn more about what party wall surveyors do or want to hire one, we’ve got expert party wall surveyors across London and the South of England. Just click any of the following links to learn more about our surveyors near you.
