Party Wall matters is a specialist field. This is commonly carried out by many surveyors on an ad-hoc basis, without the necessary knowledge and experience to avoid problems occuring.
Propvisory have recognised expertise in dealing with matters under and around the Party Wall etc. Act 1996 [usually referred to as ‘The Party Wall Act’ for simplicity]. We are uniquely placed with the only approved Third Surveyor in Lancashire!
The purpose of the legislation is to allow certain building works to be undertaken whilst protecting and safeguarding affected neighbouring owners, and providing a dispute resolution mechanism to resolve matters much quicker and at a much lower cost than requiring court intervention.
There are 3 main types of buidling works covered by the Party Wall Act:
Works to existing party structures [party walls, party fence walls/garden walls, and party floor/ceilngs]
Excavations with 6 metres of neighbouring structures.
New walls being built at the ‘line of junction’ [the boundary line].
Before starting any of these works the Building Owner [the owner wishing to undertake the work] is required to notify the Adjoining Owner. This Notice must be made in writing, include certain information and be ‘served’ as a formal legal document. A Surveyor is often employed to prepare and serve the Notice on behalf of the Buidling Owner.
For works to Party Structures, the notice must be served at least 2 months prior to the works, and 1 month for new walls along the boundary and adjacent excavations.
Only an adjoining owner can agree to reduce this notice period. If a dispute arises however, it can sometimes take longer than the notice period for surveyors to resolve the matter and allow the works to proceed. This usually occurs due to a lack of information being provided by the designers or other members of the project team.
The Party Wall Act provides powerful access rights, allowing the developing Building Owner and their building contractors to access the Adjoining Owners land and property to carry out the works, and even install scaffold. This is limited to the notifiable works however and not any other works being undertaken.
Notice & process
The Building Owner cannot proceed with the notified works unless the Adjoining Owner consents to the Notice, or appointed Party Wall Surveyors make an Award authroising the works.
If an Adjoining Owner does not respond within 14 days to a Notice regarding works to an existing Party Structure, or Adjacent Excavations, providing written consent, then there is deemed to be a dispute. The Adjoining Owner can consent late of course; but the Act includes this time period to avoid an Owner trying to frustrate/prevent the works.
When a dispute arises the Owners must either; jointly appoint an impartial ‘Agreed Surveyor’, or appoint a Surveyor each.
Where the parties appoint separate Surveyors, the Surveyors first duty is to select a Third Surveyor. The Third Surveyor has a very powerful position and for this reason Surveyors should only select someone with the appropriate level of knowledge and experience of Party Wall matters. The vast majority of the time the Third Surveyor never acuatlly becomes involved in the matter, as the Two Surveyors are able to deal with the dispute and resolve everything themselves. The Third Surveyor is however there to be called upon to act as an umpire and decide on any points they cannot agree on, or join with one of both of the Surveyors to deal with matters. Either of the Owners can also call on the Third Surveyor at any time to resolve any point in dispute; however, it is usually best to give the appointed Surveyors the opportunity to deal with the dispute, to avoid additional costs.
The Owners are free to choose their own Surveyor; but if they fail to do so a Surveyor could be appointed on their behalf.
It is usually the case that the Building Owner carrying out the work will be liable for the Surveyors fees of both parties. However, this is limited to ‘reasonable fees’. The Adjoining Owner might beome liable for Surveyor fees where they are responsible for paying towards the cost of the works, are intentionally obstructive, or raise spurious claims.
Compensation for Damage or Loss & Making Good Damage
The developing Building Owner will be liable for any damage and loss caused by their works. This will be limited to the notifiable works, unless the Owners provide the Surveyors with jurisdiction to deal with other matters. Depending on the precise works, the Building Owner might be responsible for making good [repairing] the damage their works cause, but this could always be agreed as a solution between the owners. These obligations and liability are a key part of the Party Wall Act, and apply whether the Notice is consented to or not.
In order to assess whether damage has occurred due to the works, it is critical that the condition of the Adjoining Owner’s property is recorded before the works commence. The Surveyors would ordinarily prepare a ‘Schedule of Condition’ of the areas which might be impacted, as part of their duties. However, there is still an opportunity for this to be undertaken by an independent Surveyor even when the Adjoining Owner consents to the works.
Therefore, if the proposed works are simple and present little risk to the Adjoining Onwer, it would be perfectly appropriate to consent to the Notice and request a Schedule of Condition is made. This limits the total involvement of Surveyors and associated costs, and allows the Building Owner to get on with their works.
The Surveyors main role is to resolve the matters in dispute by making an ‘Award’. The Award is often called a ‘Party Wall Award’ or sometimes incorrectly called a ‘Party Wall Agreement’ [as only the Owners can make an ‘Agreement’]. A Surveyor’s Award is a formal legal document, which is binding on the Owners, and is equivalent to a Court Order. The Surveyors will typically decide whether the Party Wall Act gives the Building Owner the right to carry out the notified works, and then decide on the timing [when] and manner in which [how] the works are undertaken; imposing conditions where relevant to protect the Adjoining Owner. The Surveyors might also need to make specific Awards to determine any particular matters in dispute relating to the works [e.g. damage caused]. Within the Award the Surveyors will also determine the level of their fees and who should pay them.
The Owners can appeal against an Award to the County Court. However, this must be done within 14 days of the Award being served, and is extremely costly and time consuming. It is often most practicable to stomach an Award which you are not entirely satisfied with than to proceed with an appeal. There is of course the option of agreeing something different with the other Owner.
Security for Expenses
An Adjoining Owner can request funds are secured to safeguard their interests. This could be to cover the potential of the works not being completed and the Adjoining property left exposed, or possible damage and other losses arising. It is not necessarily a requirement for money to be placed in a bank account, and the amount of the funds will also need to be agreed between the owners, or decided by the appointed Surveyor[s] if the Owners do not agree. There are also circumstances where the Building Owner can request secured funds from the Adjoining Owner.
Expenses shared? – depends on the works
Owners can agree anything – surveyors have to stick to the act
What is a Party Structure?
When are Excavations Notifiable?
New Walls – Party/Wholly
Risk of Injunction & Pre-existing Damage