Party Wall Act 1996 Section 2

Section 2 of the party wall act relates to the type of building works that may affect an existing party wall or structure that a building owner has the right to undertake together with the legal obligations of a building owner who intends to carry out any of those stated works.

“Section 2 applies where the line of junction is already built-upon by the forming of a boundary wall, or the external wall of the building, or, indeed, the party wall between buildings. Clause 2(2) specifies certain rights of the building over. Prior notice of the works is mandatory, but I would like to dwell on a few of those particular rights that warrant special attention. As regards subsection (2)(b), I would point out that it is usually a matter of strengthening rather than demolishing or reconstructing a party wall. But if more drastic action is necessary, the Bill allows for this in the interests of both parties.”

[The Earl of Lytton]

Section 2(1): This subsection provides that section 2 relates to existing party walls and structures that have been built on and/or adjoining on the land(s) of two or more different owners.

Section 2(2): Stipulates the types of building works that engage a building owners rights and legal obligations under the Act. There are currently 14 such rights listed.

(a) “to underpin, thicken or raise a party structure, a party fence wall, or an external wall which belongs to the building owner and is built against a party structure or party fence wall;”

What Kind of Work does This Entail?

A party wall or structure is a wall that stands on the boundary of two or more landowners. This could be a house wall that forms a part of a building or a shared wall that forms two separate buildings such as a terraced row of houses. It might also be a wall that is solely on one owner's land but a neighbouring owner has a building that is enclosed by the same wall, for example, a garage. It should be noted that party structures/walls include ceilings and floors, for example, two adjoining properties in a block of flats.

A party fence wall, on the other hand, does not form part of a building but rather forms a solitary wall that stands on the boundary of land that belongs to two or more owners an example of which might be a garden wall. Though it should be noted, for the purposes of the Act wooden structured fences are not party fence walls.

To underpin a party structure or wall is to lay a foundation below ground level or replace the existing materials, with stronger ones in order to give greater support to the structure or wall. To thicken a structure would also provide greater support to a party wall. Whereas to raise a party wall could mean to either heighten an existing structure or elevate a sinking structure back to its original height.

Subsection (3) provides that a building owner exercising their right under subsection (2)(a) is subject to certain legal obligations if the works being carried out are not as a result of any defects or want of repair. That is to say, a building owner is liable to make good any damage including damage to external land/property or internal furnishing and decorations that has been caused by the works, and in the case of an installation of any chimney stacks or flues, there must be a prior agreement between the building owner and the adjoining owner as to the materials being used and the height of the stack. If an agreement between the parties cannot be reached, it is determined by the Act as a dispute, in which case the parties will be legally obliged to determine the matter under the dispute resolution provisions under section 10 of the Act.

Subsection (2)(b) provides permission to make good, repair or demolish a party structure or party fence wall. However, this can only be done if there is a defect or want of repair of the party wall. The Act also provides that an adjoining owner(s) shall share the costs of any works being carried out under subsection 2(2)(a) or (b) if the same is being done as a result of defects or want of repair. The division of the costs shall be determined in accordance with each of the parties, beneficial use of the wall and any responsibility pertaining to it.

Subsection (2)(c) provides that a building owner has the right to demolish and rebuild a partition wall (a wall belonging to two or more different owners) that does not comply with any legislative measures. In other words, it was constructed illegally. For example, it was erected without planning permission, or put up without laying foundations etc.

Subsection (2)(d) provides that any building connected by arches or structures over public ways or over passages belonging to other persons can be demolished and rebuilt in whole or in part if they do not comply with any of the statutory requirements for such buildings or structures.

Subsection (2)(e) provides that a building owner can demolish and rebuild a structure that lacks insufficient strength or height, this includes lowering the height or thickness of the structure for the purposes of an adjoining owner. This right under subsection (4) is subject to the provision that a building owner is liable to make good any damage including damage to external land/property or internal furnishing and decorations that has been caused by the works, and in the case of an installation of any chimney stacks or flues, there must be a prior agreement between the building owner and the adjoining owner as to the materials being used and the height of the stack. If an agreement between the parties cannot be reached, it is determined by the Act as a dispute, in which case the parties will be legally obliged to determine the matter under the dispute resolution provisions under section 10 of the Act.

Subsection(2)(f) provides that a building owner can cut into a party structure for any purpose. This includes, but is not limited to, the insertion of a damp proof course. However, this is only exercisable on the proviso as provided under subsection (5), that the building owner makes good any and all damage to the adjoining owner's property or land that has been caused by the work. This includes any damage caused to internal furnishings and decorations.

Subsection (2)(g) provides that a building owner has the right to cut away from a party wall or party fence wall, external wall or boundary wall any footing or any projection, including but not limited to a projecting chimney breast, flue or jamb (one side of the enclosure of a fireplace, carrying the arch, bar, mantle or tree) for any purpose including the raising erecting or underpinning of any such wall. Subsection (5) applies to any works carried out under this subsection.

Subsection (2)(h) provides that a building owner is entitled to cut away or demolish parts of any wall or building belonging to an adjoining owner that is overhanging the land of the building owner or party wall, to the extent that it is necessary to cut away or demolish the parts to enable a vertical wall to be built or raised against the wall or building of an adjoining owner. For example, a gutter or an eave that protrudes from the top of the building into the airspace of an adjoining owner’s land and thus crosses the boundary line. Again, this right is only exercisable if the building owner makes good any damage caused by such works to an adjoining owner’s property, including any damage to internal furnishings and decorations.

Just to make the reader aware, Subsection(2)(i) for reasons unknown, is not included in the Act!

Subsection (2)(j) provided that a building owner is able to cut into the wall of an adjoining owner’s building in order to insert flashing (thin pieces of water-resistant material installed to prevent the passage of water into a structure from a joint or as part of a weather resilient blockade) or other weatherproofing of a wall erected against that wall. However, under Subsection (6) this right is only exercisable if the building owner agrees to make good all of the damage caused to the adjoining owners building as a result of the works carried out to the wall.

Subsection(2)(k) provides that a building owner is, without further restriction, able to carry out any incidental works that are connected to a party structure with the premises adjoining it.

Subsection (2)(l) provides that a building owner is, without further restriction, entitled to raise or demolish and rebuild a party fence wall or to raise an existing wall for use as a party wall.

Subsection(2)(m) provides that a building owner can reduce or demolish and rebuild a party wall or fence wall to a height of 2 meters or more where the adjoining owner is not using it for anything other than a boundary wall, or a height that is currently enclosed upon by the building of an adjoining owner. Under Subsection (7) this right is only exercisable if the building owner agrees to reconstruct any parapet or replaces an existing parapet with another or constructs a parapet where one is needed, even if one did not exist prior to the commencement of the works.

Subsection (2)(n) provides that a building owner may expose a party wall or party structure that was until the commencement of the works enclosed provided that the building owner agrees to provide adequate weathering in order to protect it from any damage that could arise from its exposure to any weather conditions.

Subsection (8) provides that any buildings or structures that were built in accordance with the statutory requirements prior to the coming into force of this Act on 18 July 1996 are deemed to have confirmed, with the statutory and regulatory requirements as specified at the time they were built.

Should any part of this section 2 of the Act affect any of our readers? Please feel free to contact Icon Surveyors, who would be more than happy to discuss any matters of concern you may have.

Note*: This blog is not an authoritative interpretation of the law; it is intended as a general guide.

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