The Party Wall Act
Party Wall etc. Act 1996
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The Party Wall Act Section 1 – Line of Junction
The Party Wall etc. Act 1996 makes provision for building works pertaining to party walls, excavations and construction that are being carried out in the vicinity of certain buildings or structures in England and Wales. It was brought into force on 18 July 1996 and was modified on 23 February 2017 and 11 February 2021 to include works relating to the High-Speed Rail line between London and the West Midlands and the West Midlands and Crewe.
Section 1 – New Building Works on Line of Junction
Subsection 1. This subsection provides that section 1 shall apply to ‘lands’ of different owners that are separated by a boundary line and either of them wants to build on any part of it. The boundary should not be built on at the juncture of the line, however, if it is, it can only be to the extent of a boundary wall that has been built at the line of the junction. It should be noted that a boundary wall (party wall) does not include fences, hedges or the external wall of a building.
Subsection 2 stipulates that a building owner who wants to build a party wall or fence on a boundary line must give at least one month’s party wall notice of any intention to do so with a description of the wall, to all neighbouring owners that will be affected by the works.
Subsection 3 provides what a building owner may do if the adjoining owner (s) in receipt of the notice, as described in the preceding paragraph, agrees within fourteen days that the works should go ahead. There are two choices, either, both of the parties can agree where the wall or fence should be built, failing which, the wall must be built on the junction line. In other words half on the building owners land and half on the adjoining owners land. The costs of the build will be divided into proportionate measures that are gaged by each of the owner’s beneficial use of the wall/fence.
Subsection 4 provides what the building owner may do if an adjoining owner in receipt of such a notice does not, within fourteen days, agree to the proposed works, the building owner may carry out the works at their own cost provided that the wall is an external wall or fence that is built on his own land.
Subsection 5 provides that a building owner who intends to build up to the boundary line on his own land must still serve notice as described by subsection 2 at least none month before the intended works are to commence.
Subsection 6 provides rights to a building owner who is building a wall in accordance with the provisions described in subsections (4) & (5) above. These rights include the right of the building owner to place any necessary footings or foundations below the land of the adjoining owner and a time frame by which time the works may commence one month and one day after the notice is served and be completed within twelve months.
Subsection 7. This subsection provides that a building owner who builds a wall on his own land shall do so at his own expense and shall compensate any adjoining owner for any damage that is caused as a result of the footings or foundations being dug out or from the wall or fence being built.
Subsection 8 provides for the determination procedure of any disputes between a building owner and adjoining owner that may arise as a result of compliance with any of the provisions under section 1.
If you are considering carrying out any of the works described, Icon Surveyors would be happy to assist you with any queries that you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 2 – Repair of Party Wall “Rights of Owner”
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.”
Section 2(1): This subsection provides that section 2 relates to existing party walls and structures that have been built on and/or adjoining the land(s) of two or more different owners.
Section 2(2): Stipulates the types of building works that engage a building owner’s 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 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, 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 owner’s 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, 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 is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 3 – Party Structure Notice OR Party Wall Notice
Section 3 of the Party Wall Act: Party Structure Notice
“Section 3 of the party wall act deals with the form and content of initial notices. At subsection (3)(a) it is provided that a building owner can do any Clause 2 work with the adjoining owners consent. So, obtaining consent obviates the need for any other procedures under the Bill.” Subsection (3)(b) provides that if the works arise as a result of a statutory notice served on the building owner, there is no need to serve a party structure notice at all; he may proceed to deal with the works as required.
Section 3(1) provides that a building owner who wishes to carry out any of the works he is entitled to exercise under section 2 of the Act, can only do so if s/he first serves notice on all or any of the adjoining owners. This notice is referred to by the Party Wall Act as a ‘Party Structure Notice’ or Party Wall Notice.
Subsections (1)(a)(b) and (c) stipulate what must be included in the content of the notice;
a) The building owners name and address, and
b) The nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars of the loads to be carried thereby; and
c) The date on which the proposed works will commence
Section 3(2) provides that a building owner must serve a Party Structure Notice or a Party Wall Notice to all of the adjoining owners at least two months prior to the proposed commencement date of any works. Such notice will cease to be effective if the notified works do not commence with 12 months of the date of service to the adjoining owner and it is not prosecuted with due diligence.
Section 3(3) provides that a building owner and any of the adjoining owners and/or occupiers of the land or buildings that may be affected by a building owner intending to exercise his rights under section 2 of the Act are free to consent and agree any of the proposed works, provided it is in writing. Subsection (3) further provides that a building owner is not obliged to serve a party structure notice if the proposed works being carried out are as a result of dangerous or neglected structures that require any other statutory notice relating to such structures being served.
Should any part of this section 3 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 is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 4 – Counter Notice
Section 4 of the Party Wall Act – Counter Notice
“Section 4 of the party wall act governs the service of the counter notice by an adjoining owner. He may require the work to be done differently or in a manner which mitigates adverse effects on his property. A building owner must take the requirements on board unless they are felt unnecessary, injurious to him or otherwise to cause difficulty. In that case the matter is in dispute and is resolved under the disputes process”.
Section 4(1) provides that an adjoining owner who does not wholly agree with a ‘party structure notice’ that has been served by a building owner is entitled to serve the building owner with a counter notice requiring that the building owner may only carry out the notified works in accordance with the specified conditions of the counter notice.
Subsection 4(1)(a) provides that any proposed works by a building owner in respect to a ‘party fence wall’ are carried out in and/or on the wall or structure to the convenience of the adjoining owner, whether that be on chimney copings, breasts, jambs or flues or piers and recesses.
Subsection 4(1)(b) provides that an adjoining owner who consents in writing to any proposed works being carried out in respect of special foundations can require the building owner to place the foundations at a greater depth than is being proposed. The adjoining owner may also require that the foundations are constructed in a way that will ensure it is sufficiently strong enough to bear the load of any columns of any intended building of the adjoining owner. Note that this subsection provides an adjoining owner with future protection in that they can demand foundations be constructed weight bear the load of ………” any intended building of the adjoining owner.”
Subsection 4(2) provides that an adjoining owner must serve a building owner with a counter notice within 1 month of the date the notice was served. It must specify the required works to be executed by the building owner and must be accompanied by plans, sections and particulars of the required works.
Subsection 4(3) provides that unless the demands of the adjoining owner would cause injury, unnecessary inconvenience or delay in the party structure notice works being executed, a building owner must comply with the requirements of the counter notice.
Should any part of section 4 of the Party Wall Act affect any of our readers, please feel free to contact Icon Surveyors, we would be more than happy to discuss any matters of concern you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 5 – Disputes Arising Under Sections 3 and 4
Section 5 Deals with Party Wall Disputes Arising Under Sections 3 and 4
“Section 5 of the Party Wall Act contains the general provisions that if matters are not settled between the parties a dispute is deemed to have arisen.”
“If an owner on whom a party wall notice or counter notice has been served does not serve a notice indicating his consent to it within the period of fourteen days beginning with the day on which the party structure notice or counter notice was served, he shall be deemed to have dissented from the notice and a dispute shall be deemed to have arisen between the parties.”
Section 5 provides that any party who fails to respond to a party wall notice or counter notice within 14 days of receipt of it will be deemed to have entered into a dispute with the other party. This is rather confusing. That is to say, if section 4 (2)(b) is to be complied with, an adjoining owner should have a month from the day of service to respond. However, section 5 stipulates that any owner in receipt of notice be it a party structure or counter notice has 14 days to indicate their consent.
Thus, on a literal reading of this section, a counter notice is deemed to be dissent, and a dispute will have arisen between the parties. However, if the building owner consents to the counter notice within 14 days of receiving it, the dispute will have been remedied without having to rely on the mediation process as prescribed by section 10 of the Act.
Should any part of this section 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 is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 6 – Adjacent Excavation and Construction
Adjacent Excavation and Construction
Section 6 of the party wall act covers excavation and construction within specified distances of an adjoining owner’s property. These works are regulated by depth, by proximity and by reference of a notional 45” plane extending outwards and downwards from the existing foundations. The purpose is to protect existing structures. This clause also sets timescales for dealing with works, so the building owner must proceed with despatch or start the process again.”
Section 6(1) provides that section 6 applies to a building owner who intends to excavate or put up a building structure that when measured horizontally is within 3 metres of any part of an adjoining owners land or building and such proposals will also include an excavation that is deeper than the existing foundations of the adjoining owners building or structure.
Section 6(2) provides that section 6 also applies to a building owner who intends to excavate and/or build any structure that will meet a plane drawn downwards in the direction of the excavation, building or structure of the building owner at an angle of 45 degrees to the horizontal from the line formed by the intersection of the plane of the level of the bottom of the foundations of the building or structure of the adjoining owner with the plane of the external face of the external wall of the building or structure of the adjoining owner, that is within 6 metres measured horizontally from any part of a building or structure belonging to an adjoining owner. A plane is (lookup)
Section 6(3) provides that a building owner must pay to underpin, safeguard or strengthen the foundations of a building or structure of an adjoining owner if an adjoining owner so requires this to be done. It should be noted that a building owner may if they so choose, do this of their own.
Section 6(4) provides that any buildings or structures that are within the specified distances under section 6 are automatically deemed as adjoining owners.
Section 6(5) provides that a building owner who intends to carry out any of the specified works under this section, must, at least one month prior to commencement of the works serve a notice on all adjoining owners stating what works s/he intends to carry out and whether there is an intention to underpin, strengthen or safeguard the foundations of the works being proposed.
Section 6(6) provides what should be served with the notice under subsection (5) above. The party wall notice must include a copy of the plans showing both the depth and whether a structure shall be erected.
Section 6(7) provides that an adjoining owner has fourteen days from service of the notice to respond to the building owner, failure of which will deem the adjoining owner to have entered into a dispute with the building owner.
It should be noted that the date of service will be determined in accordance with the way in which the building owner served the notice. The most common way is by post. In law, service is deemed to have taken place two (working) days after it is posted. It can also be stuck to a door, delivered by hand, posted to the last known address or emailed. However, an adjoining owner must give permission to accept notice served by an email, without which, service will not be deemed to have taken place. With regard to delivery by hand, service is deemed on delivery. When stuck to a door, service is deemed to have taken place the following day.
Icon Surveyors would advise a building owner to send a party wall notice by recorded delivery. That way, there is a paper trail should any disputes relating to service, arise. We would always recommend a building owner to discuss their building proposals with all and/or any adjoining owner before service of any notice required by the Act. Whether that be in writing or in person, whilst discussing the proposals, a building owner can ask the adjoining owner if they will accept notice via email. We would recommend that a building owner confirms the service by way of email when sending the notice. For example, “as per our correspondence and/or verbally agreed on (date) I (name of address of building owner) hereby serve you with a notice in accordance with section (1, 3, or 6 ) of the Party Wall Etc. Act 1996.”
Section 6(8) provides that a building owner has twelve months from the date of service to commence with the works, failure of which will deem the notice to have lapsed and the whole procedure of service of a section 6 notice will have to be started from the beginning.
Section 6(9) provides that a building owner must at the request of any adjoining owner, provide on completion of any of the works executed under section 6, such adjoining owners with particulars including any plans and sections of the works.
Section 6(10) provides that a building owner whose works have caused any damage or injury to any adjoining owner will be liable to rectify the damage and/or pay compensation to the adjoining owner for any injury that can be reasonably deduced from the works carried out.
Should any part of this section of the Act affect any of our readers, please feel free to contact Icon Surveyors, we are always happy to discuss any matters of concern you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 7 – Compensation
Section 7 of the Party Wall Act: Compensation
Section 7 of the party wall act provides for compensation of an adjoining owner for any loss or damage arising out of the works. In subsection (3) the building owner must take proper precautions to protect adjoining land, buildings and people by means such as shoring up and protecting from falling debris.
Section 7(1) provides that a building owner is at all times prohibited from causing any unnecessary inconvenience to any adjoining owner or tenant.
Section 7(2) provides that a building owner is liable to pay compensation to any adjoining owner or tenant for any losses or damage caused by any works being carried out in accordance with the Act.
Section 7(3) provides a building owner, in carrying out works that lay open any part of an adjoining owners land or building(s) must ensure that at all times that there is proper hoarding, shoring, fans and/or temporary construction for the protection of the adjoining land or building(s) and any persons occupying the land or buildings.
Section 7(4) provides that a building owner must get the previous written consent of any adjoining owner on whose land s/he intends to place special foundations.
Section 7(5) provides that the building owner who intends to carry out any works under the provisions of the Party Wall etc. Act 1996 must comply with all statutory requirements and must execute the works in accordance with the plans that have been agreed between the parties and/or the Party Wall surveyors.
Should any part of this section of the Act affect any of our readers, please feel free to contact Icon Surveyors, we are always on hand and would be more than happy to discuss any matters of concern you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 8 – RIGHTS OF ENTRY
Section 8 of the Party Wall Act: Rights of Entry
“Section 8 of the party wall act relates to powers of entry. If the procedures have been followed, an adjoining owner may not unreasonably deny access. Entry may be forced, but subject to safeguards.”
Section 8(1) provides that a building owner or anyone who represents and/or works for the building owner has the legal right to enter an adjoining owners land or building during working hours in order to execute any works under the Party Wall etc. Act 1996. This includes the removal of fixtures and fittings and furniture. In addition, any action in pursuance of the works can be taken by a building owner or his workforce.
Section 8(2) provides that a building owner has the right to break into an adjoining owner’s property if it is locked up. However, this can only be done if there is a constable or other police officer in attendance.
Section 8(3) and (4) provide that a building owner who intends to pursue their rights under section 8(1) must serve a party wall notice of that intention on an adjoining owner at least 14 days before entry is required. However, in an emergency situation, the Act gives a building owner a little leeway in that depending on the emergency any notice of intention to enter must be reasonably practicable.
Section 8(5) provides that an appointed surveyor may enter and stay on the adjoining owners land during normal working hours to carry out any of the objectives s/he was appointed to do. For example, a schedule of conditions or an inspection of executed works.
Here at Icon Surveyors, we offer 30 minutes of FREE impartial Party Wall Advice. Should any part of this section of the Act affect you, please feel free to contact us, we would be more than happy to help!
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 9 – Easements
Easements: Section 9 of the Party Wall etc. Act 1996
“Section 9 protects existing easements, including easements of light.”
Section 9 provides that a building owner intending to carry out any works in pursuance of this Act is prohibited from interfering with any adjoining owners existing rights.
What is an ‘Easement’?
In England and Wales, an easement gives a landowner the right to use another’s land for the benefit of his own. It should be noted that the land need not be an adjoining land.
Whilst an easement creates an essential right over another’s land, any such right that is claimed must satisfy the common law test as set out in the case of Re Ellenborough Park [1956] Ch 131. In this case, the essential characteristics pertaining to an easement were laid out in a four-tier test;
- There must be a dominant and servient tenement;
- The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
- The dominant and servient owners must be different persons;
- The right claimed must be capable of forming the subject-matter of a grant.
The first tier states that there must be two distinct plots of land that are affected, as a right of way that is granted to an individual is granted in their capacity as a landowner. An individual who does not own any of the affected lands is merely a licensee.
The second tier provides that any essential use of another’s land must provide both enjoyment and a benefit. In other words, there has to be some form of connection between the plots of land. For example, a right of way on a dirt road to access the user’s property, or the laying of pipes or service cables for public utilities and services. If a user is unable to show a connection of this proximity, an easement will not have been formed.
The third tier provides that any landowner wishing to create an easement must be distinctly separate from the owner of the land s/he is to derive a benefit from. However, this does not prevent quasi-easements from being created, which can in turn be registered as full easements.
The fourth tier is the most difficult to establish. In English land law, an express easement must be created by way of a deed. It is therefore imperative that any right that is to be created is both certain and definite in its purpose and that the courts will recognise such a right as an easement.
There are several ways to create an easement in English law, these are;
- Express Grant: It is a legal easement and must, under the provisions of the Law of Property Act 1925, be created by way of a deed. Thus, it will therefore bind all successors. This is legal interest must be registered at the Land Registry against both the dominant and servient land.
- Implied Easement: It’s an implied easement also provides a legal interest however there is no legal requirement for it to be registered. An implied easement is created when a vendor has two plots of land, sells one and retains the other. An easement may arise on the retained plot or the sold plot.
- Implied Grant: It’s an easement implied by grant is one that usually exists when it is necessary for the enjoyment of the land.
- Implied Reservation: these types of easements are created they must be necessary either for the use of land in general or for the use which the parties together intend the land to be put.
- Prescription: a prescriptive easement is one where a right has long been physically enjoyed by a land owner. The use of the land must be for more than twenty years and that its usage was not by force, stealth or permission of the servient land owner. Such easements can be registered.
Here at Icon Surveyors, we are happy to discuss any party wall matters of concern you may have and assist where possible, get in touch with us now for your free consultation.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 10 – Resolution of Party Wall Disputes
A Brief of Section 10 of the Party Wall Act – Resolving Party Wall Disputes
“Section 10 of the party wall act deals with the resolution of disputes. In this particular instance, both parties can agree on the appointment of one surveyor. That is a step to be recommended most strongly, particularly for households carrying out small works. Alternatively, the parties may each appoint a surveyor. These in turn will nominate a third surveyor who is called in to adjudicate only in a few instances of sustained disagreement. Between them, they will produce an agreement or award. Normally a party wall surveyor or third surveyor cannot be removed, but the Bill provides where surveyors are unwilling or unable to act.
The duty of party wall surveyors is quasi-arbitral. Once appointed they have a duty to act properly in the interest of both parties as statutory surveyors, which is a most important safeguard. Experience indicates that the great majority of disputed cases are dealt with by agreement between surveyors. The building owner generally meets the cost of the adjoining owner’s surveyor. But that is not a licence to charge excessive fees and there are generally prior agreements on charges. Safeguards are provided where a party to the dispute neglects to appoint a surveyor, in which case the other party may appoint one on his behalf. There is a fallback power whereby the local authority makes the appointment of a third surveyor on the application of one surveyor if there is a breakdown in the normal procedures.”
Section 10(1) provides that where a dispute actually arises between a building owner and an adjoining owner or one is deemed to have arisen as a result of one or the other failing to comply with any of the provisions under the Act, that the parties will first try to appoint a joint surveyor, the failure of which will result in a surveyor being appointed by each of the parties individually. If the surveyors find are unable to resolve the dispute then a third surveyor will be agreed upon and appointed by the acting surveyors.
Section 10(2) provides that all surveyors must be appointed in writing and cannot be removed by either party unless s/he falls under one of the provisions of subsection (3).
Section 10(3) provides that new proceedings to settle a dispute shall prevail in circumstances where an agreed surveyor; refuses to act or fails to act within 10 days of being served with a request from either party; deems themselves incapable of acting or, dies before a dispute is settled.
Section 10(4) provides that a party who fails to comply with section 10(1) for a period of 10 days beginning with the day on which the other party serves a request to appoint a surveyor can have a surveyor appointed on their behalf by the other party.
Section 10(5) provides that a party who appointed a surveyor who is for the reasons as stated in subsection (3) is unable to act, may appoint another surveyor.
Section 10(6) provides that a surveyor who was appointed under subsections (1), (4) or (5) refuses to act effectively, then the other party’s surveyor may proceed to act on behalf of both parties as an agreed surveyor.
Section 10(7) provides that a surveyor appointed under subsections (1), (4) or (5) who neglects to act effectively within 10 days of being served with a request by a party, the other parties surveyor may proceed in respect of the subject matter requested to be dealt with as if s/he was an agreed surveyor.
Section 10(8) provides that any surveyor who fails or neglects to appoint a third surveyor within 10 days of the other parties surveyor serving a request on them, the appointing officer or in some cases the Secretary of State may on the application of either surveyor select a third surveyor who shall have the same powers as if the appointment was under subsections (1) or (9).
Section 10(9) provides the remedies for the refusal, neglect or death of a third surveyor to act in a dispute. In any of these circumstances, the parties surveyors may select another third surveyor to act.
Section 10(10) provides that the acting surveyor(s) agreed or otherwise shall settle the dispute by way of making a party wall agreement with regard to any dispute between a building owner and an adjoining owner that has arisen from any of the proposed works being carried out under the provisions of the Act.
Section 10(11) provides that either of the parties may call in a third surveyor who will resolve the dispute and make an agreement.
Section 10(12) provides what an agreement is able to determine whether the owner(s) have the right to execute the proposed works, the time and manner in which it may be carried out and any other matter that is incidental to the dispute including the surveyor’s costs. However, any time limits for service of notices must have elapsed before any works are able to commence.
Section 10(13) provides for the reasonable costs that a surveyor is able to charge for their services. This subsection further provides that the surveyor(s) have the power to determine who is to pay such costs.
Section 10(14) provides that the appointed surveyor(s) have a duty to serve any agreement made on each of the parties.
Section 10(15) provides that where an agreement is made by a third surveyor, once the bill is settled the third surveyor shall serve it on the parties surveyors who in turn will serve it on the parties.
Section 10(16) provides that the agreement is conclusive and may only be questioned in accordance with the provision set out in subsection (17)
Section 10(17) provides that an agreement may only be appealed within a period of 14 days of receipt of service to a county court. The county court may rescind the agreement or vary it. The court may also make an agreement on costs.
If any of our readers are affected by any of the issues raised and would like further guidance, please contact Icon Surveyors who will be happy to assist.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 11 – Expenses
Section 11 of the Party Wall Act – Expenses
“Clause provides for payment of cost for the works generally by the building owner who is proposing to carry the works out but also in proportion to the use to which each party puts the wall. Additional subsequent use of a new or altered party wall may trigger the liability for a further contribution.”
Section 11(1) provides that unless otherwise stipulated under the Act a building owner is liable for all of the costs pertaining to the proposed works.
Section 11(2) provides that any disputes relating to costs shall be settled by an appointed surveyor, or surveyors, as the case may be.
Section 11(3) provides that any expenses pertaining to the parties agreeing to build a Party Wall or Party Fence Wall under section 1 of the Act shall remain to be proportionally shared between the parties.
Section 11(4) provides that any expenses relating to a defect or want of repair under the building owners rights to underpin, thicken or raise a party structure, a party fence wall or an external wall that belongs to the building owner, shall be proportionally shared between the building owner and the adjoining owner taking into account both the use and responsibility of the structure or wall that each of the owners may have.
Section 11(5) provides that any expenses relating to the making good, repair or demolition and rebuilding of a party structure or party fence wall in a case where the proposed works are necessary as a result of a defect or want of repair, shall if more than one owner makes use of the wall, be proportionally shared between the building owner and the adjoining owner(s) taking into account both the use and responsibility of the structure or wall that each of the owners may have.
Section 11(6) provides that a building owner who intends to demolish a party structure in order to rebuild it so that it is of sufficient strength and height for the purposes of a building belonging to the building owner, shall, in any case where the adjoining owner(s) and/or occupier(s) premises are laid open, pay to the adjoining owner or occupier a fair allowance for any inconvenience or disturbance caused by the works.
Section 11(7) provides that an adjoining owner, who opposes building owners right to reduce or to demolish and rebuild a party wall to a height of more than 2 metres where the adjoining owner only uses it as a boundary wall, or, to a height that is currently enclosed upon by the building of an adjoining owner, may serve a counter-notice under section 4 of the Act requiring the building owner to maintain the existing height of the wall. However, in so doing, the adjoining owner shall be liable to pay the building owner any costs relating to a wall that surpasses either 2 metres in height or the existing height enclosed upon by the building of the adjoining owner.
Additional Read
Section 11(8) provides that an adjoining owner who has suffered damage as a result of the building owner’s works is entitled to have the costs to make good the damage, determined by an appointed surveyor, and paid directly to them in lieu of any repairs being carried out by the building owner.
Section 11(9) provides that any of the building owner’s works that have been carried out in pursuance of the adjoining owner’s requirement(s) or request(s), shall be paid by the adjoining owner.
Section 11(10) provides that an adjoining owner who has consented to let a building owner construct special foundations on his land is entitled to any increased costs that are incurred as a result of the special foundations when erecting any building or structure. To claim such costs an adjoining owner must provide the building owner with all of the necessary invoices and documents within 2 months of the completion of the adjoining owner’s works. On receipt of these documents, the building owner is liable to pay any increased costs that are due to the special foundations.
Section 11(11) provides that an adjoining owner who benefits from the subsequent use of work that was carried out and paid for solely by a building owner shall be liable to pay a fair proportion of what the incurred expense would be if the works were carried out at the time of the adjoining owner’s subsequent use.
If you or your adjoining neighbour is planning to undertake any building works that you have reason to believe may incur security expenses, Icon Surveyors would suggest that you contact an experienced party wall surveyor to discuss, at first instance, the site-specific facts that may require such protections to be taken into account.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
A Party Wall Question: What does Section 11(11) in the Party Wall Act State?
Recently, a question was raised regarding a Party Wall Act job, sparking an intriguing discussion.
Participants sought to establish what the expenses included in section 11(11) should secure if one owner re-constructs a fence under the Party wall Act, then another owner uses it in the future.
What does Section 11(11) State in the Party Wall Act?
Suppose a neighbour makes use of work done independently at the building owner’s expense. In that case, they (the neighbour) should cater for a certain percentage of the cost the building owner incurred when executing that particular work.
After the payment, the neighbour will be considered to have covered costs calculated based on the current market prices.
Party Wall Surveyors are tasked with assessing what the Party Wall Notice involves before determining the current cost of work.
The allocation we were debating on concerned a one-storied hind extension to a decked house in Fulham.
The adjoining owner had nearly five years before constructed an identical extension during which a 1500mm high-brick common barrier wall was demolished.
They would later re-construct it according to the Party Wall Act building regulations.
Now that the boundary was under the building regulation Act, the current owner was free to use it as a projected extension.
Seeing that the adjoining owner had appointed me as their Party Wall Surveyor, I collaborated with the building owner’s icon surveyors to discuss the following options.
Section 11 (11) Expenses would Depend on the Constructing Expenses as Follows:
- Covering the entire wall and the foundation
- Covering the entire wall minus the foundations
- Covering the entire wall but not the section where the initial Party Wall Fence lay
I proposed the first option, but the surveyor representing the building owner argued that option three would be ideal.
He claimed that it had been his option of choice for more than three years.
After a long phone call, we decided to consult a Third Party Wall Surveyor for an unofficial opinion.
He said: ”I would tend to go with 3. It could include allowance for the better foundations if appropriate.” While he was an unofficial opinion, we did not seek further clarification.
My translation of ‘better foundations’ was new foundations which is what had already been built.
On the other hand, the surveyor representing the building owner translated it as a 60% addition (the initial foundations that had been excavated were 400mm deep compared to 1000mm depth for the new foundations.)
We later agreed that section 11(11) costs should comprise the new wall but not the initial party wall fence section. However, the whole new foundation would be inclusive.
This option seemed illogical, in my opinion. However, now that it was two against one (the surveyor representing the building’s owner and the third Party Wall surveyor), I saw no point in consulting further.
I later posed the question to a professional legal panel comprising two expert property barristers and one consultant property solicitor during one of our Part Wall Act conference meetings.
They all agreed that the first option was ideal for that particular situation. The lesson I learned from this situation is that often you will have to compromise your stand, especially if you are the minority.
If you need any guidance on Party Wall Act related issues, feel free to get in touch with us at 020 7183 2578. You can also send us an email at info@iconsurveyors.co.uk, and we shall get back to you.
The Party Wall Act Section 12 – Security for Expenses
Security for Expenses: Section 12 of the Party Wall Act
“Section 12 of the party wall act refers to securities for expenses………………………. There is deliberately no means of summary enforcement as it is felt that this could fetter the jurisdiction of the courts. Most owners and adjoining owners in experience thus far discharge their obligations voluntarily. The normal county court procedures remain for cases where they do not. An unappealed party wall award would be strong prima facie evidence that it was reasonable. Experience shows that there are very few complications in this area.”
Section 12(1) provides that an adjoining owner, prior to any of the intended works being carried out, is entitled to serve a notice requiring a building owner to arrange for security to be given to the adjoining owner for any damage that may be caused by the proposed works. The parties can elect to agree the security or, in the event of a dispute, the matter will be determined by an appointed surveyor, or surveyors, as the case may be.
Section 12(2) provides that in the case of an adjoining owner being liable for a proportion of the costs of any works pursuant to the Act, or the adjoining owner elects to serve a notice for the security of expenses, prior to any of the works commencing, a building owner is entitled to serve a counter notice on an adjoining owner requiring them to give such security to which they both agree, or, in the case of the dispute, the matter will be determined by the appointed surveyor(s).
Section 12(3) provides that an adjoining owner who fails to comply within one month of being served a counter notice by a building owner and/or a determination from the appointed surveyor(s), will not be entitled to rely on their original notice for the security of expenses as it shall cease to have an effect.
Should any part of this section 12 of the Party Wall Act affect you, get in touch with Icon Surveyors we are always happy to help. Here at Icon Surveyors there no question to big or small.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 13 – Account for Work Carried Out
Section 13 of the Party Wall Act: Account for Work Carried Out
“Section 13 of the party wall act refers to accounting procedures for costs of works. …….. There is deliberately no means of summary enforcement as it is felt that this could fetter the jurisdiction of the courts. Most owners and adjoining owners in experience thus far discharge their obligations voluntarily. The normal county court procedures remain for cases where they do not. An unappealed party wall award would be strong prima facie evidence that it was reasonable. Experience shows that there are very few complications in this area.”
Section 13(1) provides for a building owner’s recuperation of expenses of which an adjoining owner is liable under the Act. The building owner has a period of 2 months from completion of any of the works to serve the adjoining owner(s) with an account of the particulars and incurred expenses together with any deductions the adjoining owner or any other person is entitled to. When issuing such accounts the building owner has a specific duty to ensure that the apportioned costs are valued at fair average rates and prices in accordance with the nature of the work, the location, and the costs of labour and materials at the time of the build. In other words, a building owner can’t charge London prices for work that was carried out in a location where materials and labour are both plentiful and cheaper.
Section 13(2) provides that an adjoining owner is entitled to serve a notice of objection on a building owner within one month of receipt of service of the accounting notice.
Section 13(3) provides that an adjoining owner who does not serve a notice of objection under subsection 13(2), is deemed to have accepted the accounts as stated in the building owner’s accounting notice.
If you are planning to carry out any construction work near the neighbour’s party wall and are confused about what type of party wall notice should be served upon the adjoining owner, feel free to reach Icon Surveyors anytime. We offer 30 minutes of free Party Wall Advice service.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 14 – Settlement of Account
Section 14 of the Party Wall Act: Settlement of Account
“Section 14 of the party wall act refers to the settlement of accounts. …….. There is deliberately no means of summary enforcement as it is felt that this could fetter the jurisdiction of the courts. Most owners and adjoining owners in experience thus far discharge their obligations voluntarily. The normal county court procedures remain for cases where they do not. An unappealed party wall award would be strong prima facie evidence that it was reasonable. Experience shows that there are very few complications in this area.”
Section 14(1) provides that an adjoining owner is liable to pay the building owner for all of the incurred expenses of which s/he has been notified under section 13 of the Act.
Section 14(2) provides that a building owner is vested with a sole interest in any property to which the incurred expenses relate until such time as the adjoining owner settles the account. In other words, if an adjoining owner fails to pay their part of the incurred expenses, any property belonging to the adjoining owner from which any part of the expenses derived will be vested wholly to the building owner. The Act is silent as to whether such rights can be registered at the land registry?
Should any part of this section of the Act affect our readers, please feel free to contact Icon Surveyors today, we are here to help and more than happy to discuss any matters of concern you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 15 – Service of Party Wall Notices
Service of Party Wall Notices – Section 15 of the Party Wall Act
“Section 15 of the party wall act governs the service of party wall notices. Importantly, if an adjoining owner fails to respond to the initial notice the dispute procedures come into play as a failsafe mechanism. Therefore in future, there will be no presumption of the agreement by default.”
Section 15(1) provides for the method of service that may be used when serving a party wall notice or document that is required under the Party Wall Act. There are several ways by which service can be achieved; it can be delivered in person, by way of a post by sending it to the usual or last known residence or business address of the owner. However, it must be an address that is situated in the United Kingdom. If the building owner is a company, the notice should be addressed to the secretary or clerk of the company and either delivered in person or posted to the company’s registered address.
Section 15(1A) provides for service by way of electronic communications. Before service can be deemed to have been accepted using this method, a building owner must first acquire the consent of the adjoining owner, their agent and/or servants. Such consent must not have been withdrawn and must be sent to an electronic address that has been specified by the adjoining owner their agents and/or servants.
Section 15(1B) provides that a statement made by an adjoining owner, their agents and/or servants giving consent to being served with notices or documents by way of electronic communications may be withdrawn by the maker of the statement at any time by giving notice to the person to whom the statement of consent was given.
Section 15(1C) provides the meaning of an electronic address which includes any number or electronic address, for example, a phone number to send a text or an email address to send party wall notice via an email. This subsection also provides what electronic communication is; this can be found under the provisions of the Electronic Communications Act 2000. In addition, it is worth noting what ‘specified’ for the purposes of subsection 15(1A) means. It means a statement made for the purposes of consenting to or withdrawing from service by way of electronic communications.
Section 15(2) provides an alternative method of service of party wall notices or documents on an absent owner of premises. It must be addressed to “the owner” (naming them) and delivered in person to anyone that is on the premises or by fixing it to a conspicuous part of the premises.
Here at Icon Surveyors, we pride ourselves on our Party Wall Surveying expertise. Our Party Wall Surveyors are proud to have represented thousands of property owners. Whether it be a private client, a local authority, charity or even some of the United Kingdom largest companies, we have assisted them all.
If you are stuck in such a Party Wall Surveying matter you would like to discuss with our team of Party Wall Surveyors, get in touch with us and we will happily assist.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 16 – Offences
Section 16 of the Party Wall Act – Offences
“Section 16 is self-explanatory and refers to offences and fines.”
Section 16(1) provides that an ‘occupier’ of any land or premises who knowingly refuses to allow a building owner, their agent’s, servants or employee’s entry to the premises to which they are entitled to carry out works under the Act, will have committed a criminal offence.
Section 16(2) provides that any person that knowingly obstructs or hinders anyone who is legally attempting to enter the premises to carry out any of the works to which they are entitled under the Act, is guilty of an offence.
Section 16(3) provides that anyone who has committed an offence under subsections 16(1) & (2) and will be liable to a summary conviction and a fine.
Should any part of this section of the Act affect you, please feel free to contact Icon Surveyors, we are more than happy to discuss any matters of concern you may have.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
The Party Wall Act Section 17 – Recovery of Sums
Section 17 of the Party Wall Act – Recovery of Sums
Section 17 of the Party Wall Act provides that any sum payable as a result of the Act is recoverable summarily by way of a civil debt. In other words, an application to the court to make an automatic judgement to pay the debt is available to anyone owed money under the provisions of the Act. However, this is not possible if monies are owed as a result of being fined by a court.
Here at Icon Surveyors, we pride ourselves on our Party Wall Surveying expertise. Our Surveyors are proud to have represented thousands of property owners. Whether it be a private client, a local authority, charity or even some of the United Kingdom largest companies, we have assisted them all. If you have a Party Wall Surveying matter you would like to discuss with our team of Party Wall Surveyors, get in touch with us and we will happily assist.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
Party Wall Act Section 18 – Exception in Case of Temples Etc
Section 18 of the Party Wall Act – Exception in Case of Temples Etc
Section 18(1) provides that the Party Wall Act does not apply to any land whether located in inner London or Greater London where there is an interest in it that belongs to any of one of the four Inns of Court. In other words, such properties are exempt from the Act.
Section 18(2) provides that inner London for the purposes of this section of the Act includes Greater London except for the outer London Boroughs
If you are planning to carry out any construction work near the neighbour’s party wall and are confused about what type of party wall notice should be served upon the adjoining owner, feel free to reach us anytime. We offer 30 minutes of free Party Wall Advice service.
Party Wall Act Section 19 – The Crown
Section 19 of the Party Wall Act: The Crown
Section 19 “refers to the Crown exemptions. This currently repeats the existing London Building Acts.”
Section 19(1) provides that the Act applies to land in which the Queen has an interest that is held by the Crown or any land in which there is an interest held by a government department, or any interest held in trust for the Queen for the purposes of any government department.
Section 19(2) provides that the Act applies to land that is vested in but not occupied by the Queen in the right of the Duchy of Lancaster. In other words, the Duchy of Lancaster is a private estate owned by the Queen, as the Duke of Lancaster. The Chancellor of the Duchy of Lancaster (Currently, Rt. Hon. Michael Gove) administers the estates and rents of the Duchy of Lancaster and is a member of the cabinet.
This subsection also provides that the Act applies to land that is vested in but not occupied by, the possessor for the time being of the Duchy of Cornwall. The Duchy of Cornwall is a private estate currently held by Charles, the Prince of Wales. The revenues raised from this estate are passed to HRH The Prince of Wales and Duke of Cornwall, who chooses to use them to fund his public, charitable and private activities and those of his family.
Should any part of this section of the Act affect any of our readers, please feel free to contact Icon Surveyors, we are happy to discuss any matters of concern you may have. We also offer 30 minutes of free advice.
Note*: This is not an authoritative interpretation of the law; it is intended as a general guide.
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