The Party Wall etc. Act 1996 is a complicated area of property law and should be understood fully by both Building Owners proposing to undertake 'notifiable' works and Adjoining Owners likely to be affected by such works. We are always more than pleased to assist members of the public and other professionals in providing initial objective, no-obligation advice in the spirit of promoting best practice under the Act. For further guidance on the Party Wall etc. Act 1996, or any related Party Wall issues, please also click on the following:
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What is a Party Wall?
In simple terms, a wall that divides two properties in separate ownership. A Party Wall may be built astride the boundary, and is thus partly on the land of each owner ('type a'); or it may sit entirely on the land of one owner, but still separates the two properties ('type b'). A Party Wall is therefore in shared ownership; this means that certain works, deemed to be 'notifiable' under the Act, will require the Building Owner's service of prior notice upon the Adjoining Owner before works may start. The Act details the requisite notice periods applicable in each situation. In the event of a 'dispute' in response to the notice(s), the parties must either each appoint their own Surveyor, or concur in the appointment of a single Agreed Surveyor in accordance with Section 10 of the Act. The purpose of this appointment is the resolution of the dispute by way of a Party Wall Award.
Are my proposed works 'notifiable'?
If you are a Building Owner intending to carry out works to modify or extend your property, you should consider the nature of the proposed works in relation to the Act to ascertain whether you need to serve prior notice on your neighbour (the 'Adjoining Owner'). Whilst you may have Planning Permission and Building Regulations approval, the works may not proceed unless you have notified the Adjoining Owner under the Party Wall etc. Act 1996 on the basis:
Failure to serve the correct notice before embarking on 'notifiable' is a breach of statutory duty and will result in the works being deemed 'unlawful'. This may give the Adjoining Owner grounds to seek injunctive relief against the Building Owner. This means a court injunction may be sought to prevent any further works taking place until such time the Act has been complied with. Legal costs may also be claimed against the Building Owner where the Adjoining Owner has successfully obtained an injunction.
Do I need to serve notice?
You are required, by law, to serve notice on any affected Adjoining Owner (as defined by the Party Wall etc. Act 1996) if your works are 'notifiable'. Typical building projects that involve notifiable works include:
What happens if I don't serve notice when required to do so?
Failure to serve valid legal notice in accordance with the Party Wall etc. Act 1996 is a breach of statutory duty, which is a tort. Proceeding with notifiable works without following the notification procedures laid down by the Act may lead to injunctive proceedings which may, in turn, delay the works and involve heavy legal costs. Undertaking notifiable works without complying with the Act may also impede the sale of the property to which the works relate until the matter is legally resolved. Since the Act confers rights which would not be available at common law (i.e. trespass), non-compliance with the Act precludes the enjoyment of such rights meaning acts of trespass usually authorised by the Act may not be lawful and could be the subject of injunctive proceedings for removal and/or a claim in damages by the injured party.
Can I serve notice myself?
Yes. Unfortunately most DIY notices downloaded from the internet are later found to be defective and, therefore, legally invalid. This then affects the validity of the appointment of Surveyors and the Award. Defective notices that have to be later re-served by a professional Party Wall Surveyor may delay commencement of the notified building works. For a small initial fee it is safer to ensure the correct notice is properly drafted by an experienced Party Wall Surveyor to ensure legal validity and avoid delay and/or wasted cost.
What is a Party Wall Award?
A Party Wall Award (often incorrectly called a 'Party Wall Agreement' or 'Third Party Award') is a legally binding document drafted and served by the appointed Surveyor(s) to resolve the dispute between the parties. This sets out the rights and duties of both parties with regard to the notified works and ultimately legally authorises the works. An Award will determine which party is responsible for the cost of the works and any associated fees, including the fees of the Party Wall Surveyor(s). The Award will usually contain a Schedule of Condition to evidence the condition of the Adjoining Owner’s property prior to commencement of any works; this may be needed for later referral in determining the extent of any damage claimed by the Adjoining Owner to be a direct result of the awarded works. The Award will usually also state which party is responsible for implementing any remedial works in the event of resultant damage.
The Party Wall Consultancy provides expertise in this complex area of law in both residential and commercial property. For more information on The Party Wall Consultancy, click on About Us or download our Factsheet below.
Is the Building Owner responsible for the fees of the Party Wall Surveyor(s)?
Not necessarily. Whilst it is usually the case where the Building Owner is implementing the notifiable works for their sole benefit they will be responsible for the fees of the Surveyors acting for both sides, or the Agreed Surveyor acting alone, there are instances where liability for the fees of the Surveyor(s) may be determined against both parties. This may be where the works involve repair of a Party Wall on account of disrepair. It may be that the conduct of the Adjoining Owner during the statutory process is such that costs have been unreasonably incurred and it would be unjust to award those costs against the Building Owner despite the fact the notifiable works are for their sole benefit. Each case is obviously unique, but the Party Wall Surveyor(s), where properly appointed, will usually determine the liabilty and quantum of fees within the Award.
How long does the process take?
This will depend on a number of factors including the quality of the design information readily available, the complexity of the proposed works, the number of appointed Party Wall Surveyors and the cooperation of the Adjoining Owner(s) as regards access for the Schedule of Condition.
It is also important to remember that the notices have minimum notice periods. Notices for works proposed under sections 1 and 6 of the Act require a minimum of one month's prior notification. Notices for works proposed under section 2 of the Act require a minimum of two months' prior notification. However, complex schemes and multi-surveyor tribunals mean the Award process can often take several months from the point of notification to the service of the Award.
For the above reasons, it is important to plan ahead of the proposed commencement date of the building works. A minimum of 3-6 months for the entire process from notice to Award should therefore be allowed depending on the complexity of the works and the number of Surveyors appointed.
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