Work on existing party walls (section 2 of the Act)
What are my rights under the Act if I want to do work on an existing party wall?
The Act provides a Building Owner, who wishes to carry out various sorts of work to an existing party wall, with additional rights going beyond ordinary common law rights.
Section 2 of the Act lists what work can be completed.
The most commonly used rights are:
What are my duties under the Act?
If you intend to carry out any of the works mentioned in section 2 of the Act you must inform all Adjoining Owners. You must not even cut into your own side of the wall without telling the Adjoining owner.
The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to halt your work via a court injunction or seek other legal redress.
An Adjoining Owner cannot prevent someone from exercising the rights given to them by the Act, but may be able to influence how and at what times the work is done.
The Act also states that a Building Owner must not cause unnecessary inconvenience. This is interruption that is deemed over and above that which will inevitably occur when such works are properly undertaken.
The Building Owner must provide temporary protection for adjacent buildings and property where necessary. The Building Owner is responsible for making good any damage caused by the works or must make payment in lieu of making good if the Adjoining Owner requests it.
Where party walls and structures are modified, repaired, or demolished and rebuilt (s.2(2)(a) and (b) of the Act) section 11(4) and (5) provides that the cost of the work shall be shared where the work is necessary on account of defect or want of repair, in proportion to the use each party makes of the structure or wall and the responsibility of each for the defect or want of repair concerned.
Where use is made of party walls previously built at the cost of the Adjoining Owner, the Act makes provision for a fair payment to be made to the Adjoining Owner.
Do I need to consider anything when putting up shelves or wall units, or installing recessed electric sockets, or removing and renewing plaster?
Some works on a party wall may be so minor that service of notice under the Act would be generally regarded as not necessary.
However, the key point is whether your planned work might have any possible consequences for the structural strength and support functions of the party wall or cause damage to the Adjoining Owner's side of the wall. If you are in doubt about whether your planned work requires a notice you might wish to seek advice from a qualified building professional.
Who is as an "Adjoining Owner"?
Essentially, an Adjoining Owner is anyone who is an owner of land, buildings or rooms adjoining those of the building owner, which may include the local authority.
Also, for the purposes of section 6 of the Act a property shall be deemed to be adjoining if it is within the relevant distance even if it is nor adjoining. The adjoining property may have a freehold owner, or a leasehold owner all of whom may be an 'Adjoining Owner' under the Act.
Where there is more than one owner of the property, or more than one adjoining property, it is your duty to notify all Adjoining Owners.
How do I inform the Adjoining Owner or owners?
It is best recommended to discuss your planned work fully with the Adjoining Owners before you (or your professional adviser on your behalf) give notice, in writing, about what you plan to do. If you have already resolved possible difficulties with your neighbours, this should mean that they will readily give consent in response to your notice.
You do not need to appoint a professional adviser to give the notice on your behalf, however if you do you should satisfy yourself as to the experience and professional qualifications of your adviser.
Whilst there is no official form for giving notice under the Act, your notice will need to include the following details:
The notice should be dated and it is advisable to include a clear statement that it is a notice under the provisions of the Act. You may deliver the notice to the Adjoining Owner(s) in person, send it by post, or send it by email if the adjoining owner has stated a willingness to receive the notice by email and has provided an email address. Alternatively, if you do not know the name of the owner and/or the property is rented out you may address the notice to "The Owner", adding the address of the premises, and deliver it to a person on the premises, or, if the neighbouring property is empty, fix it to a conspicuous part of the premises.
What time frame should I serve the notice within?
At least two months before the planned starting date for work to the party wall. The Adjoining Owner may agree to allow works to start earlier but is not obliged to even when agreement on the works is reached. The notice is only valid for a year, so do not serve it too long before you wish to start.
What happens after I serve notice?
A person who receives a notice about intended work may:
If, after a period of 14 days from the service of your notice, the person receiving the notice has done nothing, a dispute is deemed to have arisen. Your notice should not come as a surprise. If you have already ironed out possible snags with your neighbours, this should mean that they will more readily give consent in response to your notice.
It should be noted that where consent is given you are not relieved of your obligations under the Act, for example to avoid unnecessary inconvenience or to provide temporary protection for adjacent buildings and property where necessary.
The notice of consent is simply confirmation that, at that time, there is nothing ‘in dispute’. Should a difference arise later (for example in respect of damage caused).
What happens if I receive a counter-notice?
A person who receives notice regarding future work may, within one month, give a counternotice setting out what additional or modified work he/she would like to be carried out for his/her own benefit, and accompanied by all necessary information.
A person who receives a notice, and intends to give a counter-notice, should however let the Building Owner know within 14 days.
If you receive a counter-notice you must respond to it within 14 days otherwise a dispute is deemed to have arisen.
What if I cannot reach agreement with the Adjoining Owners
The best way of settling any point of difference is by friendly discussion with your neighbour. Agreements should always be put in writing.
If you cannot reach agreement with the Adjoining Owners, the next best thing is to agree with them on appointing what the Act calls an "Agreed Surveyor" to draw up an "Award". The surveyor must be a person agreed between the owners to act.
Alternatively, each owner can appoint a surveyor to draw up the award together. The two appointed surveyors will select a third surveyor (who would be called in only if the two appointed surveyors cannot agree or either of the owners or either surveyor calls upon the third surveyor to make an award).
In all cases, surveyors appointed or selected under the dispute resolution procedure of the Act must consider the interests and rights of both owners and draw up an award impartially.
Their duty is to resolve matters in dispute in a fair and practical way. Where separate surveyors are appointed by each owner, the surveyors must liaise with their appointing owners and put forward the respective owners' preferred outcome.
However, beyond that the surveyors do not act as representatives for the respective owners. They must always act consistently with the terms of the Act to reach a fair and impartial award.
Who can I appoint as a surveyor in the occurrence of a disagreement?
The term "surveyor" under the Act can include any person who is not a party to the matter. This means that you can appoint almost anyone you like to act in this capacity. However, the person should not have already been engaged to supervise the building work. The surveyor should also have a good knowledge of construction and of procedures under the Act. You cannot however act for yourself.
Some people are obviously more suitable than others. You may wish to look for a qualified building professional with some experience or knowledge of party wall matters.
What purpose does a surveyor serve?
The surveyor (or surveyors) will settle the matter by making an "award" (also known as a "party wall award"). This is a document which:
It advised to keep a copy of the award with your property deeds when the works are completed.
Who pays the surveyor's fees?
Typically, the Building Owner will pay all costs associated with drawing up the award including the adjoining owner’s surveyor’s fees, if the works are solely for the Building Owner’s benefit.
However, in certain situations where work is necessary due to defect or need of repair the adjoining owner may have to pay costs. In these circumstances the costs are split based on the use each owner has of the structure or wall concerned and responsibility for the defect or need of repair if more than one owner makes use of the structure or wall concerned.
The surveyor (or surveyors) will agree who pays the fees for drawing up the award and for checking that the work has been carried out in accordance with the award.
How much will a surveyor cost?
There are no set charges. It is for clients to negotiate fees with the surveyor(s). Surveyor’s fees are a matter for individual surveyors. The Act provides for surveyors to be paid the reasonable costs of drawing up an award. However, if the owner or the adjoining owner feels that a surveyor’s costs are unreasonable they may ask for a breakdown of costs, e.g. The hourly rate and number of hours of time being charged for.
Is the surveyor's award final?
The Award is final and binding unless it is rescinded or modified by a county court on appeal. Each owner has 14 days from service of the award on them to appeal to the county court against the award.
An appeal should not be undertaken flippantly, and an unsuccessful complainant may incur an award of costs against them. An owner considering an appeal may well wish to pursue legal advice.
Who pays for the building works?
Your arrangement with the Adjoining Owner, or the award in the event of a dispute, will set this out. The general principle in the Act is that the Building Owner who initiated the work pays for it if the works are solely for his benefit. However, there are cases where the Adjoining Owner should pay part of the expense of the works. This is set out in section 11 of the Act and is for the surveyor to determine.
It covers for example:
A) Where work to a party wall is needed because of defects or lack of repair for which the Adjoining Owner may be responsible (in full or in part).
B) Where an Adjoining Owner requests that additional work should be done for his benefit.
What happens if the neighbours won't cooperate?
If a dispute has arisen and the neighbouring owner refuses or fails to appoint a surveyor under the dispute resolution procedure, you will not be able to appoint an "agreed surveyor".
In these situations, you can appoint a second surveyor on the neighbouring owner’s behalf, so that the procedure can continue. Your own surveyor will advise you on the appointment of a second surveyor on behalf of the Adjoining Owner.
What about access to neighbouring property?
Under the Act, an Adjoining Owner and/or occupier must, when necessary, let in your workmen and your own surveyor or designer etc to carry out works in pursuance of the Act (but only for those works), and allow access to any surveyor appointed as part of the dispute resolution procedure.
You must give the Adjoining Owner and occupier notice of your intention to exercise these rights of entry. The Act says that 14 days' notice must be given, except in case of emergency. If access is necessary to carry out the notified works you may wish to include this requirement in the notice that you serve when seeking consent to carry out the works, so as to avoid any dispute in this respect at a later stage when work is underway.
It is an offence, which can be prosecuted in the magistrates' court, for the occupier or other person to refuse entry to or obstruct someone who is entitled to enter premises under the Act, if the first-mentioned person knows or has reasonable cause to believe that the latter person is entitled to be there.
If the adjoining property is closed (for example an unoccupied property) your workmen and your own surveyor or designer etc. may enter the premises by breaking open a fence or door, if they are accompanied by a police officer after following the Act’s procedures.
You should discuss access for works with your neighbour. It is often in the best interests of the Adjoining Owner to allow access voluntarily to build a wall or to carry out works for which there is no statutory right of access, as this will allow a better finish to the side of the wall that they will see.
What are the rights of the Adjoining Owners?
Adjoining Owners rights include…
Your competent partner for all types of construction projects.
Call us now on 0207 1180 039 Open 9-5 pm Monday to Friday.
Email anytime: firstname.lastname@example.org