If you or your neighbour are planning to undertake a kitchen extension, convert the loft space, reconfigure internal layouts or excavate a basement, the proposed works may well fall under the provisions of The Party Wall etc. Act 1996.
The Party Wall Act is an important piece of legislation in England and Wales. It is designed to help prevent construction related disagreements between neighbours before building work is started and provides a clear legal framework for resolving any disputes that may arise in relation to party walls and other party structures.
The Act broadly covers three distinct types of ‘notifiable’ work (more detail below):
Where work falls within the scope of the Act, it is necessary for a Building Owner to serve notice and obtain the Adjoining Owner’s consent. If consent is not given, the parties are deemed to be ‘in dispute’ under the Act and surveyors must be appointed to resolve the dispute by way of a Party Wall Award.
The process set out in the Act protects neighbours (Adjoining Owners) by determining the manner and timing of notifiable work whilst having the ability to offer compensation in the event that damage is caused. It also affords the property owner who is undertaking the work (Building Owner), certain rights such as access to neighbouring land for the purposes of completing that work.
Notifiable work under the Party Wall act falls into three distinct categories, each corresponding to a different Section of the Act:
The most common type of new building is the construction of a new wall up to (but not beyond) the boundary, which is technically referred to as a 1(5) wall. Adjoining Owners can incorrectly believe that any new walls need to be set slightly back from the boundary (typically because their architect told them this when they built their extension 20 years ago) but this is not the case. As long as all elements including roofs, gutters and fascias do not protrude, the wall can be built right up to the boundary and does not require the neighbour's consent.
A less common wall type is a 1(2) wall, which is built 50/50 on the boundary and does require the Adjoining Owners' consent. This is advantageous to the Building Owner as they gain a slightly larger extension, whilst the Adjoining Owner gets a party wall that they can then build off with their own extension in the future (unlike a 1(5) wall which they cannot).
The Act lists 14 different work types that fall under Section 2, with the vast majority falling under only half a dozen sections. Below are the most common types of work to a party wall:
This section of the Act applies to excavations for foundations that are within 3 metres of a neighbouring property and deeper than their existing foundations. The majority of London housing stock is either Victorian or built in the 1930s, and their foundations rarely exceed 30cm. However, proposed foundations will have to be a minimum of 1 metre deep to satisfy current Building Control requirements.
This section can also apply to shallower pad foundations or where entire sections of land are lowered.
Building Owners must notify all affected Adjoining Owners of proposed work that falls under Sections 1, 2 and 6 of the Act. Due to the complexity of the process, this is normally undertaken by an appointed surveyor but some homeowners choose to serve notice themselves. Sections 1 and 6 have notice periods of 1 month whilst for section 2 it is 2 months.
Upon receipt of a notice, an Adjoining Owner can consent or dissent. Here, it is worth noting the unhelpfulness of the wording as Owners are not consenting or dissenting to the work taking place. They are simply confirming whether they wish to appoint surveyor(s) to represent their property interests.
The different responses are:
There is no surveyor involvement and work can proceed. That said, a consent can be caveated with the requirement of a Schedule of Condition which is a written and photographic record of their property.
DISSENT AND CONCUR IN APPOINTMENT OF AN AGREED SURVEYOR
Here, a singular surveyor (‘Agreed Surveyor’) will act for both the Building Owner and Adjoining Owner on an impartial and unbiased basis. This option is recommended where work is relatively straight forward in nature.
DISSENT AND APPOINT THEIR OWN SURVEYOR
Here, the Building Owner’s surveyor and Adjoining Owner’s surveyor work together, both acting impartially. Complex projects such as basement excavations and large-scale works tend to work better with two surveyors. One of their first tasks is to agree a third surveyor to be called upon in the event of non-agreement.
This is a photographic and written record of the Adjoining Owner’s property before work starts, which allows the surveyor(s) to determine whether damage has or has not been caused.
The Award (often incorrectly called a Party Wall Agreement) sets out the parties involved and the notifiable work and determines the manner in which it is to be undertaken and its timings. Surveyor(s) may for example, require that cutting into the party wall for steel beams be undertaken with hand tools only, or that excavations close to the Adjoining Owner’s extension be dug in 1m sections rather than in one go.
Once the content of the Award, including any relevant drawings, is concluded, the Award is then served on both owners. The Building Owner can now legally start work, subject to the passing or waiving of any notice periods.
Here, the surveyor(s) check off the Schedule of Condition and, if all is well, close the file. If damage is noted, then the Adjoining Owner can either have the Building Owner’s contractor make the repair or receive a payment in lieu and instruct their own contractor.
At Peter Barry we have a 12 strong team of experienced party wall surveyors, assistant surveyors and specialist party wall administrators to help ensure that everything runs smoothly.
We cover the whole of the inner M25 area from our network of London offices so if you are planning on undertaking work that falls within the scope of the Act or have received a notice informing you of proposed works that may affect your property you are very welcome to contact us for some advice.
If you are planning works, please send us copies of your plans for an overview of the process and a competitive quote.
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Before undertaking any major renovations or construction that affects a party wall or adjoining structure an owner must seek consent from the adjoining owner(s). If the owner conducting the work has not sought consent, they are acting outside of the law and you may have to take action to stop them.
The process involves applying for an injunction from the County Court. A judge will listen to your case and you will likely be required to provide a cross-undertaking in costs – meaning that if your neighbour is not actually conducting illegal works, you will be liable for any costs incurred as a result of the injunction. It’s therefore wise to take legal advice before applying for an injunction.
Yes. If you have not gained consent from any affected adjoining owners, or been through the Act’s dispute resolution procedure, your work has been conducted outside of the law and you could be penalised for it.
If you are only part way through your works do not continue until you have served notice to cover the remaining work and followed procedures under the Act. Any dissents to the notices must be dealt with by surveyors appointed under Section 10 of the Party Wall Act.
The Act covers three types of work:
• Building along the boundary between two properties
• Excavating within prescribed distances of shared or adjoining structures
• Altering a party structure
Notifiable works include cutting into the walls dividing terraced houses to insert beams as part of a loft conversion, excavating within three metres of the neighbour’s property to construct the foundations to an extension and constructing the flank wall of an extension at the boundary.
Unfortunately, as an adjoining owner or occupier, you are expected to tolerate “reasonable disturbance”. However, your neighbour also has a responsibility to conduct their alterations without causing unnecessary inconvenience.
If you suffer a quantifiable loss as a result of works covered by the Party Wall Act you will be eligible for compensation (for example, if you operate a business and customers can no longer enter your premises).
Otherwise, your neighbour must still adhere to normal health and safety legislation, as well as environmental protection laws, such as keeping noise and vibrations within local limits and working within time restrictions.
The Party Wall Act does require you to grant your neighbour access to your land if their construction work cannot be completed any other way and they provide you with the required notice. This is normally considered to be 14 days, but if an urgent matter occurs (such as a burst pipe), this notice can be reduced proportionately to the nature of the emergency. Access must be ‘necessary’ so if there as an alternative way for your neighbour to undertake the works, even if it is slightly more expensive, that’s what they should do.
Appointed surveyors will prepare a schedule of condition covering the ‘at risk’ parts of the adjoining property before any construction work begins and such is strongly recommended. In the event that damage occurs as a result of the work, a schedule of condition will protect both parties from unfair or misleading claims made by the other party. The document provides proof of the property’s condition prior to work so that it can be properly restored in case of damage occurring.
Surveyors will also prepare a party wall award to regulate the time and manner of works cover by the Act. The award will cover important aspects such as working hours, access and safeguards to reduce the risk of damage occurring.
No, or at least not the part of the works that are covered by the Act. While it can be tempting to start work before the award has been agreed and served, doing so would be unlawful.
If an adjoining property is damaged as a result of works covered by the Act the owner can either allow the building owner’s contractor to make good or request a payment in lieu. Any disputes over the cause of the damage or the cost of making good must be resolved by the appointed surveyor(s) and will generally be confirmed in a further award.
The award will include a timescale within which the payment in lieu must be made. Should a payment that has been confirmed in an award not be made the parties can take enforcement action in the Magistrate’s Court.
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