In this blog, Icon Surveyors will be considering what Party Wall Access is and how a Party Wall Surveyor can help a party to get such party wall access lawfully.
What is Party Wall Access?
Party Wall Access is the ability to gain lawful access to an adjoining owner’s property, be it land and/or a building, for the purposes of carrying out work pursuant to a building owner exercising their rights under the Party Wall etc. Act 1996.
A building owner who proposes to carry out notifiable works under section 2 of the Act cannot carry out the works unless the construction vehicles (JCB) and/or other materials for the proposed works are transported through the adjoining property’s land. Another example might be a building owner who, in complying with building regulations and/or other statutory provisions, needs to access an adjoining building in order to secure a load-bearing wall. In both of these scenarios, a building owner will need to acquire consent to lawfully enter and/or use the adjoining owner’s property. Entering an adjoining property without permission to do so is, under the common law of tort, trespass, and is thus actionable.
Under section 8 of the Act, there are various provisions a building owner may use to gain lawful access to an adjoining property. Under section 8(1), a building owner may lawfully enter adjoining land in pursuance of carrying out notifiable works, provided a notice to enter the land has been served on an adjoining owner at least 14 days prior to the proposed entry.
Under section 8(2) a building owner may enter closed/locked premises with a constable provided an adjoining owner and/or occupier has been served a notice in accordance with section 8(4) of the Act. Section 8(4) provides that a notice of intention to enter the property must be served on an adjoining owner/occupier at least 14 days prior to the proposed entry.
Under section 8(5) of the Act, a surveyor who has been appointed under section 10 of the Act by either a building owner and/or an adjoining owner can lawfully enter either party's land to carry out a survey provided notice pursuant to section 8(4) has been served on the party.
It must be noted that the above stated provisions are only applicable if it can be shown that a party’s rights under section 9 of the Act do not come into play.
How to Get a Party Wall Access Licence?
There are two ways to obtain a Party Wall Access Licence:
1) The first one is by way of a License Agreement between the parties. This can be drawn up by a Party Wall Surveyor under Section 10 of the Act, or a solicitor. It can be in the form of a license, agreement, and/or deed.
- The terms and conditions should include:
- what access is required for,
- when and why access is required,
- how long it may be required for;
- undertakings as to any damage resulting from such access,
- compensation for access; and
- loss of use or inconvenience.
This is not an exhaustive list and the parties will agree to the terms in accordance with their individual circumstances. If an adjoining neighbour refuses to enter into a licence agreement, depending on the circumstances of the case, a building owner may be able to obtain an Access Order from the court under the Access to Neighbouring Lands Act 1992.
2) Alternatively, provided section 9 of the Act does not apply, a building owner may apply to the court for injunctive relief for an adjoining owner/occupier's failure to comply with their obligations under section 8(1) or 8(2) of the Act. This alternative route may come into play if a dispute has not arisen with an adjoining owner who is not required under the Act to respond to a separate notice served under section 8 of the Act, refuses to give access to a building owner and thereafter refuses to enter into a licence agreement.
If an adjoining neighbour refuses to enter into a license agreement and the court refuses to grant an access order unless the works fall under the Party Wall etc. Act 1996, the building owner will have to find an alternative way to carry out the works. Icon Surveyors are happy to provide free party wall advice to any building or adjoining owners who may be affected by the subject matter raised in this blog.
Note*: This blog is not an authoritative interpretation of the law; it is intended as a general guide.