Party Walls, Conservatories, Party Wall Act, Conservatory Suppliers, England

Party structures

The Act is mainly concerned with 'party structures', defined in section 20 of the Act as either a party wall or a floor, partition etc. separating buildings. A ‘party wall’ is:

Example 1: A wall that straddles the boundary above ground level (ignoring foundations) and is part of a building (the same as a party fence wall except that it forms part of a building)

Or

Example 2:A wall that separates buildings belonging to different owners but without straddling the boundary. Although this is the property of one landowner, the Act bestows rights over the wall to the adjoining non-owner.

Note that in the illustration – Party Wall – Example 2, only the darker shaded part of the wall counts as a party wall. This is because the party wall act makes it clear that it is only 'so much of a wall' as separates two buildings that is to be treated as a party wall.

Party Wall Structures that are not “party walls”

A third type of party structure is neither Example 1 nor Example 2. The above illustration shows a building divided into three flats, each approached by a separate staircase. The internal wall between the two upper flats is a party wall, as is the floor/ceiling separating the upper flats from the lower one. This assumes that the flats are separately owned (usually on long leases). If a common owner let the flats on say a weekly tenancy there would be no party structures.

Owners’ rights

The Act uses the term 'building owner' to refer to the person wishing to exercise rights under the Act, while the other party is referred to as the 'adjoining owner'. Section 2 of the Act gives the building owner substantial rights, such as:

• The right to repair or demolish and rebuild a party structure or party fence wall which is out of repair

• The right to demolish and rebuild a party structure which is of insufficient strength or height for the purposes of a new building he wishes to construct. The building owner is also entitled to reduce the height or thickness of a party structure provided it remains sufficient for the purposes of the adjoining owner

• The right to cut into a party structure for any purpose (for example, to insert a damp proof course)

• The right to cut away projections over his land (for example a chimney flue)

A welcome reform conferred by the 1996 Act covers the situation where a building is demolished and exposes to the elements a party wall, which had previously been enclosed. Section 2(2)(n) now lists this as one of the rights governed by the Act but requires that adequate weathering must be provided.
In support of these rights a building owner is given a right of entry into the adjoining owner's premises, subject to various safeguards.

Notices and awards

The Act decrees that, before any of the rights can be exercised, the building owner must give two months' written notice. Unless the adjoining owner consents in writing within two weeks, a dispute is deemed to have arisen between the parties. Some neighbours will refrain from giving consent, however well disposed they may feel towards the project. They has nothing to lose and everything to gain from such a technical dispute since the building owner is now required to pay for his neighbour to be advised and represented by a surveyor chosen by the neighbour.

In the event of a dispute – which happens more often than not – a surveyors must be appointed to resolve it. Although it is technically possible for both parties to agree to use the same surveyor, the adjoining owner is usually reluctant to agree to such a proposal. The more usual result is that each owner appoints his own surveyor and the two surveyors then select a third surveyor to act as referee in case of deadlock. The third surveyor takes no part in the proceedings if all goes smoothly – and indeed he need not even be informed. It is usual, though not compulsory, to appoint a chartered building surveyor or architect for this role.

The Act also sets out procedural rules that cover such matters as failure or refusal to act, and requires the surveyors to settle disputed matters by an award. This follows the traditional pattern of commercial arbitration.

The astute building owner will instruct a surveyor to advise him on party wall matters before the service of the written notice. However, both parties must recognise that surveyors have a duty, at all times, to act fairly and impartially between the two owners as they are in the position of arbitrators.

Each surveyor will generally take a schedule of condition before any work starts. They then work towards agreeing an award settling the details of the building work to be done insofar as it affects the adjoining owner. The third surveyor will be consulted only in the event of a disagreement. A valid award can be made by any two of the three surveyors.

When all relevant work is finished, the surveyors re-inspect by reference to the schedule of condition and ensure that any damage is corrected.

The Act stipulates that the costs of the award – for example, the surveyors' fees – are to be paid whichever of the parties that the award determines. In practice, the building owner is usually liable for the entire cost. The surveyors decide who pays the cost of the work itself and as the project is usually for the sole benefit of the building owner it is usually he who pays. Sometimes, however, an owner builds or strengthens a party wall for his own benefit but later the neighbour wishes to make use of it himself. In this case, the owner who paid for the wall may recover a contribution towards the cost at current prices.

A Party Wall Conservatory

Excavation notices

The Party Wall Act also governs excavations close to a boundary. To guard against damage to adjoining buildings by undermining, a building owner must serve notice before carrying out certain types of excavation.

The section of the Act governing excavations apply to two separate situations. Firstly, where a building owner proposes to excavate within three metres (previously ten feet) of a structure belonging to an adjoining owner. If the building owner's excavation will extend to a lower level than the bottom of the foundations of the neighbour's building, he must serve a notice.

The second situation is where the excavation is carried out more than three metres from any structure of an adjoining owner but within six metres of such a structure. To determine whether a notice must be served, a notional line is drawn from the bottom of the foundations of the neighbour's building. The line slopes down at an angle of 45 degrees. If the building owner's excavation extends below this line then a notice must be served.

These notices must be served at least one month before the building owner starts to excavate. The notice must give proposals for underpinning, etc and be accompanied by plan and section drawings. As with party wall notices, a dispute is deemed to have arisen if the adjoining owner does not consent to the work within two weeks. The dispute is resolved in the same way.

Legal implications

Past experience in inner London, which has been subject to regulations similar to those covered in the Party Wall Act for more than a hundred years, has demonstrated that party wall matters must be carefully dealt with at the outset of any affected project. The courts will grant an injunction to restrain any building work that is carried out in disregard of party wall regulations. It’s a case of ‘a stitch in time saves nine’ since very expensive and time-consuming delays can result if the rules are not observed.
The Act is even-handed, though, in that it will not tolerate a situation in which an adjoining owner tries to hold a developer to ransom. In such cases – and provided the rules are followed – the developer can, in effect, compulsorily purchase the use of the walls along the boundaries of his site.

Don’t go it alone

Like all legislation, the finer points of the Party Wall Act could be misinterpreted by the layman. The results could be catastrophic. It simply isn’t worth taking chances. By all means study the Act and, if you are absolutely confident that you understand your obligations, proceed on that basis. But if there are any doubts or queries, take legal advice – it could be money very well spent.

More Useful Reading: The Party Wall etc Act 1996: explanatory booklet

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