Wall to wall rules

Norman Joss looks at the provisions and regulations of the Party Walls Act 1996. Norman Joss is a barrister at One Essex Court.

Since the 1930s, adjoining property owners in parts of London have basked in the sunshine of the London Building Acts. Save for minor exceptions, the rest of England and Wales has been consigned to the foggy conditions prevailing under the common law.

All that has changed with the coming into force of the Party Walls etc Act 1996 on 1 July 1997. It is intended to provide a scheme modelled on the London Building Acts, whereby building work can be carried out on boundaries and/or to party structures.

At first sight the act appears complicated and cumbersome. In fact, it is not, and set out below is a review of its main operative provisions.

An owner wishing to exercise rights under the act is referred to as the building owner (BO); the owner/occupier of adjoining land, against whom BO wishes to exercise his statutory rights, or to whom he owes statutory obligations, is referred to as the adjoining owner or adjoining occupier (AO).

An understanding of the basic terminology of the act (“party wall”, “party fence wall” and “party structure”) is an essential starting point. It can best be explained by reference to figures 1 and 2.

Sections 1-9 deal with the substantive rights and obligations arising under the act in the circumstances where:

there is no existing party structure (s.1), or

there is an existing party structure, party fence wall or external wall (s.2), or

works are to be carried out on BO's land at a stated distance from buildings on adjoining land (s.6).

Compliance with the statutory notice requirements gives BO the right to carry out permitted works and, where necessary, a right of entry to adjoining or other land. Additionally, the Act provides for compensation and security for adjoining land and contains a dispute resolution procedure.

Section 1 deals with new building on the line of junction, and applies where the junction of two properties is not built on, or is built on only to the extent of a boundary wall (which is neither a party fence wall nor an external wall of a building). This section covers both new building on the line of junction (straddling the line), and new building along the line of junction (a wall built wholly on BO's land).

In either case, the process commences with the service on AO of a notice that must indicate BO's desire to build and describe the intended wall. If AO consents, the wall is built centred on the boundary or in such other position as may be agreed between them. The expense is defrayed proportionally according to the use made of the wall. The wall results in a party wall or party fence wall.

Where AO's consent is not forthcoming, or BO has no wish to build on the line of the junction, but instead served a notice indicating a desire to build along the boundary, BO obtains a right (exercisable up to 12 months after service of notice), at his cost, to place under AO's land projecting footings and foundations as necessary for the construction of the wall.

Compensation is payable to AO for any damage to his land. Disputes are to be resolved by the procedure under section 10.

Section 2 confers rights to carry out works where the line of junction is built on or there exists a boundary wall which is a party fence wall or external wall of a building.

The rights relate to 13 categories of works, mainly repairing and improvements, but also replacement and alterations, including reduction in height and exposure of previously enclosed walls. Some works are subject to provisos in respect of making good and the provision of weatherproofing to newly-exposed walls.

As a mandatory precondition, the exercise of section 2 rights requires the service of a “party structure notice”, and AO has an opportunity to serve a counter-notice imposing building requirements. BO must comply with the requirements of the counter-notice unless it would be injurious to him or cause him unnecessary inconvenience or delay him in the execution of the works.

Section 6 imposes a notice obligation where, within two specified zones of influence, BO proposes to excavate, or excavate for and erect a building/structure. It is not limited to activity on the line of junction or to works of construction. It applies where either:

within 3 metres (measured horizontally) of AO's building/structure, any part of BO's excavation and/or the building/structure will be lower than the bottom of the foundations AO's building/structure; or

within 6 metres (measured horizontally) AO's building/ structure, any part of BO's excavation and/or building/structure will meet a 45 degrees line drawn downwards from the base of the foundations of AO's building/structure.

A notice is required indicating BO's proposals, stating whether he intends to underpin or strengthen AO's foundations. The notice must be served together with plans and sections showing the site and depth of the proposed excavation and building. Failure by AO to serve notice of consent within 14 days is deemed dissent, and gives rise to dispute.

In respect of each right arising under the act, it is provided that BO's notice will lapse if work has not commenced within 12 months of service and the work is not prosecuted with due diligence.

The dispute resolution system, which itself includes a number of areas where dispute can arise, provides for “surveyors” to be appointed to resolve disputes arising or deemed to arise in the exercise of the procedures under the act.

The definition of a surveyor is wide and only the parties themselves are excluded expressly. But, given the requirement that a surveyor acts expeditiously, it is implied that the term refers to someone of adequate competence in party wall disputes. A party cannot rescind the appointment of his surveyor.

The award under section 10 may deal with the right to execute works; the time and manner of executing work; and any other matter arising out of or incidental to the dispute. In the event of dissatisfaction, there is an appeal to the county court.

The Act stipulates that in most circumstances the costs of works will be borne by BO, although there are exceptions based on use made of the party structure involved.

It is to be hoped that the Act will prove to be of significant benefit to adjoining owners. However, as property litigators will know from experience, it is one thing to have rights in respect of building on a boundary, but identifying that boundary is another problem altogether.