07 Neighbourly Matters

Question 1

What is the controlling legislation applicable to party walls?

Answer 1

Party Wall etc Act 1996

Question 2

What year was the Party Wall etc Act introduced?

Answer 2

1st July 1997

Question 3

What is the purpose of the Party Wall etc Act?

Answer 3

The Act provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings, that may otherwise constitute trespass or nuisance

Question 4

When does the Party Wall etc Act come into play?

Answer 4

The Act covers:

1. Proposals to erect a new wall at a boundary that is not already built on (Section 1)
2. Various work proposed directly to an existing party wall or structure (Section 2)
3. Excavation within 3 or 6 metres of a neighbouring building or structure, depending on the depth of the hole or proposed foundations (Section 6)

Question 5

What are the different types of party structure?

Answer 5

1. A wall that stands astride the boundary of land belonging to two or more different owners
2. ‘Party fence walls’ (e.g. a garden wall), but not things like wooden fences
3. A wall that stands wholly on one owner’s land but used to separate two or more owners’ buildings
4. Any wall, floor partition or other structure separating parts of buildings approached by separate entrances or staircases (e.g. flats)

Question 6

Define an ‘owner’ for the purposes of the Party Wall etc Act.

Answer 6

An ‘owner’ is anyone:

1. Holding a freehold title, or
2. Holding a leasehold title for a period exceeding one year, or
3. Under contract to purchase such a title, or
4. Entitled to receive rents from the property

Question 7

Under what circumstances may the Party Wall etc Act not apply?

Answer 7

1. Minor works that will not affect the structure of the wall or cause damage to the Adjoining Owner’s side (e.g. replastering, shallow chasing for electrics, screws/plug for shelving etc.)
2. Works under Section 2 provided written consent is obtained from all Adjoining Owners before work commences
3. Land situated in inner London which is an interest belonging to certain Temples named under Section 18 of the Act

Question 8

What different party wall notices are there?

Answer 8

1. Section 1 - Line of Junction Notice
2. Section 3 (for Section 2 works) - Party Structure Notice
3. Section 6 - Notice of Adjacent Excavation

Question 9

What must be contained within a Line of Junction Notice?

Answer 9

1. An indication of the Building Owner’s desire to construct a wall
2. A description of the wall

Question 10

What time frames are associated with a Line of Junction Notice?

Answer 10

1. Must be served at least 1 month prior to work commencing
2. If the Building Owner wishes to build on both lands, he needs written consent from all Adjoining Owners within 14 days of serving the notice
3. If the foundations of the proposed wall project onto the Adjoining Owners’ land but the wall itself is wholly on the Building Owner’s land, then unless the foundations are ‘special foundations’, the Building Owner can proceed without written consent from the Adjoining Owner and has between one and 12 months from the date he served the notice to complete the works

Question 11

What happens if an Adjoining Owner does not consent to a Line of Junction Notice?

Answer 11

If the Building Owner does not receive consent, he can only build the wall wholly on his own land

Question 12

If a Building Owner wishes to construct a wall, the outside face of which is located inboard of the boundary line but the foundations straddle the boundary line, is a party wall agreement necessary?

Answer 12

There is no requirement for consent if the Building Owner chooses to build a wall wholly on his own land (unless the foundations are deemed as ‘special foundations’ under the Act), but he must still serve notice

Question 13

What is a ‘special foundation’ and does the Party Wall etc Act give the Building Owner rights to place one on the Adjoining Owner’s land?

Answer 13

• ‘Special foundations’ are defined under the Act as an assemblage of beams or rods employed for the purpose of distributing any load (e.g. reinforced concrete foundation / underpin)
• The Building Owner must have consent from the Adjoining Owner before such foundations are installed

Question 14

What must be contained within a Party Structure Notice?

Answer 14

1. The name and address of the Building Owner
2. The nature and particulars of the proposed work
3. The date on which the proposed work will begin

Question 15

What time frames are associated with a Party Structure Notice?

Answer 15

1. Must be served at least 2 months prior to works commencing
2. The Adjoining Owner has 14 days from the party structure notice to serve a notice of consent
3. The Building Owner’s notice will cease to have effect if the work has not begun within 12 months of serving the notice and if the work is not executed with due diligence

Question 16

What options do Adjoining Owners have when served with a Party Structure Notice?

Answer 16

1. Serve a notice of consent within 14 days of the party structure notice
2. Dissent, either by serving notice of dissent or by not consenting within 14 days
3. Serve a counter-notice within one month of the party structure notice

Question 17

What is the purpose of a counter-notice?

Answer 17

If the Adjoining Owner requires additional works to be carried out, such as chimney breasts, piers etc. or deeper/stronger ‘special foundations’, he can request them

Question 18

Within what period must a counter-notice be served?

Answer 18

Within one month of the party structure notice

Question 19

Under what circumstances will a Notice of Adjacent Excavation apply?

Answer 19

1. 3m rule - the excavation is within a horizontal distance of 3m to any part of the Adjoining Owner’s structure and any part of the excavation within the 3m extends below the bottom of the Adjoining Owner’s foundations
2. 6m rule - the excavation is within a horizontal distance of 6m to any part of the Adjoining Owner’s structure and any part of the excavation within the 6m will cut a line drawn downwards at 45 from the bottom of the Adjoining Owner’s foundations starting in line with the building’s external face

Question 20

Using a sketch, explain the 3 metre rule.

Answer 20

Question 21

Using a sketch, explain the 6 metre rule.

Answer 21

Question 22

What must be contained within a Notice of Adjacent Excavation?

Answer 22

1. An indication of the Building Owner’s proposals
2. A statement as to whether the Building Owner proposes to underpin or otherwise strengthen or safeguard the Adjoining Owner’s foundations
3. Accompanying plans and sections showing the site and depth of the proposed excavations and any structures proposed to be erected

Question 23

What time frames are associated with a Notice of Adjacent Excavation?

Answer 23

1. Must be served at least 1 month prior to works commencing
2. Adjoining Owner must serve a notice of consent within 14 days
3. The Building Owner’s notice will cease to have effect if the work has not begun within 12 months of serving the notice and if the work is not executed with due diligence

Question 24

What happens if an Adjoining Owner does not consent to a Notice of Adjacent Excavation?

Answer 24

If the Adjoining Owner does not serve a notice of consent within 14 days, he is deemed to have dissented and a dispute shall be deemed to have arisen

Question 25

What is the difference between a dispute ‘deemed to have arisen’ and a ‘dispute which has arisen’?

Answer 25

1. Disputes ‘deemed to have arisen’ are those where the Adjoining Owner allows the time limit for serving a consent notice to pass, therefore indicating dissent
2. Disputes that ‘have arisen’ are those where the Adjoining Owner has served notice of his dissent within the appropriate time limit

Question 26

How are disputes settled under the Party Wall etc Act?

Answer 26

1. Where there is a dispute, section 10 of the Act requires the parties to appoint a surveyor (known as the ‘agreed surveyor’) to settle the dispute impartially
2. Alternatively, the parties can each appoint their own surveyors (known as the ‘appointed surveyors’) who will look to settle the dispute with one another

Question 27

As a Party Wall Surveyor, who’s interests are you protecting, the Building Owner or the Adjoining Owner?

Answer 27

Appointed surveyors have a duty of care to their appointing owners (note - not ‘client’) but still owe a duty to both parties to perform their obligations diligently and impartially and should therefore not follow an owner’s instruction where it would frustrate the proper function of the legislation

Question 28

In the event that a party wall dispute cannot be settled by the respective parties’ surveyors, what is the procedure for resolution?

Answer 28

If each party appoints their own surveyor, the two surveyors must appoint a ‘third surveyor’, who will be called upon if the two appointed surveyors cannot agree

Question 29

What is the procedure if the parties cannot agree on the appointment of a Third Surveyor?

Answer 29

The Act allows the Local Authority to make the appointment (or the Secretary of State if the LA is already involved)

Question 30

Under what circumstances can an Appointed Surveyor be replaced?

Answer 30

Agreed/appointed surveyors can be replaced if they:

1. Refuse to act
2. Neglect to act for a period of 10 days
3. Dies before the dispute is settled
4. Deems himself incapable of acting (e.g. due to a conflict of interest)

Question 31

If either party refuses or neglects to appoint, how is this resolved?

Answer 31

If either owner refuses or neglects to appoint a surveyor for a period of 10 days, the other owner can appoint one on their behalf

Question 32

Why must a surveyor have a letter of appointment before serving party wall notices for an owner?

Answer 32

If a surveyor is not correctly appointed by a signed appointment letter, it can render the award invalid - it is therefore important to exchange copies of signed appointment letters with the other surveyors before proceeding

Question 33

What is a party wall award?

Answer 33

When the surveyors have settled the dispute, an ‘award’ is made, which details the decision that the surveyor(s) has come to and the provisions upon which the award has been granted

Question 34

What information should be included on a party wall award?

Answer 34

1. Schedule of condition prior to the works commencing
2. Description of the allowed works
3. Responsibility for expenses of the work
4. Responsibility to pay the surveyor(s) fees
5. Works to be carried out in accordance with the statutory authority requirements and to a satisfactory standard
6. Right for the Building Owner (and his workmen) to enter the Adjoining Owner’s premises to carry out the works (only when necessary and during working hours)
7. Provision to minimise disturbance (e.g. restrict noisy works to certain hours)
8. Obligation for the Building Owner to make good and compensation for loss or damage caused by the works
9. Security of expenses provisions

Question 35

Who pays for the works under a party wall award?

Answer 35

In most circumstances, the cost for the works is paid for by the Building Owner, however there are some situations where the award may apportion the cost of works with the Adjoining Owner:

1. Where a party structure (for which there is joint liability) is defective, the remedial works should be split appropriately between the owners
2. Where the Adjoining Owner requests additional works, the costs for such should be payable by the Adjoining Owner
3. Where the Building Owner proposes to reduce the height of a party wall but the Adjoining Owner dissents, the Adjoining Owner should pay a proportion for retaining/maintaining that wall

Question 36

Who is liable for an injury or damage suffered by an Adjoining Owner as a result of the work?

Answer 36

The Building Owner, which should be detailed in the award

Question 37

Does the Party Wall etc Act provide for rights of entry onto the land of an Adjoining Owner?

Answer 37

Yes, as per section 8 of the Act, which should also be detailed in the award

Question 38

If a notice has been served and access to neighbouring land is refused, can the Building Owner force entry?

Answer 38

If access is refused, it can be forced if accompanied by a police officer

Question 39

What is meant by the term ‘security of expenses’ under the Party Wall etc Act?

Answer 39

Security provided for completing the works if there was a risk otherwise - may have to assess the Building Owner’s financial circumstances

Question 40

What ‘security of expenses’ provisions may be included within a party wall award?

Answer 40

Can be achieved by:

1. Setting the money in a bank account that can only be released on the signature of two of the three appointed surveyors, or
2. Money held in a client account of a firm of chartered surveyors

Question 41

Does the Party Wall etc Act state which party is responsible for paying the Party Wall Surveyors’ fees?

Answer 41

The Act does not state who is responsible to pay the surveyors’ fees, however the obligation to pay should be set out in the award and will usually follow the same principle as payment of works (i.e. paid for by the Building Owner but apportioned if the Adjoining Owner is to receive some benefit under the award)

Question 42

How long after the party wall award is served can building work commence?

Answer 42

Works can commence as soon as the award has been granted, however the award may contain a clause preventing works from commencing until 14 days after the date of the award (to allow the parties time to appeal if necessary)

Question 43

Explain the appeal process in the event that either party disagrees with the content of a party wall award.

Answer 43

An owner can appeal the award, however must do so to the County Court within 14 days of the award being made

Question 44

What rights does an Adjoining Owner have under the Party Wall etc Act?

Answer 44

Adjoining Owners have a right to:

1. Appoint a surveyor to resolve any dispute
2. Require reasonably necessary measures to be taken to protect their property from foreseeable damage
3. Not suffer any unnecessary inconvenience
4. Be compensated for any loss or damage caused by the works
5. Ask for security of expenses

Question 45

What guidance is available for party wall procedures?

Answer 45

1. RICS guidance note ‘Party Wall Legislation and Procedure (6th ed. 2011)
2. Communities and Local Government ‘The Party Wall etc Act 1996’ explanatory booklet

Question 46

What is a right to light?

Answer 46

A right to light is a right to receive sufficient light through a ‘defined aperture’, allowing ordinary and comfortable use and enjoyment of a dwelling, or ordinary beneficial use and occupation of other buildings

Question 47

What legislation governs rights to light?

Answer 47

• Prescription Act 1832
• Rights to Light Act 1959

Question 48

How would a neighbouring owner obtain a right to light?

Answer 48

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Question 49

What guidance is available for rights to light?

Answer 49

RICS Guidance Note ‘Rights of light: practical guidance for chartered surveyors in England and Wales’

Question 50

What is an easement?

Answer 50

An easement is a right which a person has over land owned by someone else

Question 51

How are easements created?

Answer 51

Easements can be created by:

1. Express grant (e.g. set out in a conveyance deed)
2. Necessity (e.g. if there is only one means of access to a site)
3. Prescription (the act has been repeated for at least 20 years)

Question 52

Name some different types of easement.

Answer 52

1. Rights of way
2. Right to light
3. Right for underground services to pass beneath the land of a neighbouring property
4. Right of support
5. Right to draw water

Question 53

How can you check if a footpath is an easement?

Answer 53

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