The Party Wall etc. Act 1996 (Act) has been effective since 1 July 1997. It applies throughout England and Wales and provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings.
The Act is separate from planning or building regulations control and it applies equally to residential and commercial properties. It also applies to Crown, Government, and local authority-owned property.
Put simply, the Act provides that where a building owner proposes to start work of the type covered by the Act, they must give notice of the proposed work to the adjoining owner in the way set out in the Act. It also sets out a dispute resolution mechanism for when the parties cannot come to an agreement on the scope of the proposed works.
Despite the Act being in force for longer than 25 years, it still causes a lot of confusion among property owners, whilst being altogether unknown to others. We are often asked to advise on the provisions of the Act and its application and have put together a short collection of the most frequently asked questions.
What type of work is covered by the Party Wall Act?
The Act covers the following types of work:
1. Building a free-standing wall or a wall of a building up to or astride the boundary with a neighbouring property. This is covered by section 1 of the Act. For this type of work, notice must be given to the adjoining owner at least one month before the planned starting date.
2. Working on an existing party wall or party structure or building against such a party wall or party structure. This is covered by section 2 of the Act. For this type of work, notice must be given to the adjoining owner at least two months before the planned starting date.
3. Excavations within three metres (if any part of that work will go deeper than the neighbour’s foundations) or six metres (if any part of that work will meet a line drawn downwards at 45° in the direction of the excavation from the bottom of the neighbour’s foundations). This is covered by section 6 of the Act. For this type of work, notice must be given to the adjoining owner at least one month before the planned starting date.
Irrespective of the type of work, and the section of the Act under which notice is served, the notice is valid for one year and if the proposed works are not commenced within these 12 months, a fresh notice may be required.
Is the notice I received valid?
There is no official form for the notice, but you should check that:
- The works are covered by the Act;
- It was given within the correct timeframe;
- It contains the necessary details; and
- It was correctly delivered.
The notice can be hand delivered, sent by post, email (if consent has been given and not withdrawn) or even fixed to premises in some cases.
I received notice under the Party Wall Act. What can I do?
Once you have been served with a notice under the Act, you can:
- Give your consent in writing to the proposed works if there are no disputes at that time. If a dispute arises at a later date, you can still use the dispute resolution procedure set out by the Act.
- Refuse to consent to the proposed works.
- Do nothing, in which case a dispute is deemed to have arisen 14 days after service of the notice.
- Give a counter notice setting out what additional or modified work you would like to be carried out for your own benefit.
What if no agreement can be reached?
In this case, the dispute resolution procedure is activated, and you can:
- Appoint a surveyor jointly to draw up an award; or
- Each owner can appoint a surveyor to draw up an award together.
In the second scenario, if the two appointed surveyors cannot agree or either of the owners or either surveyor calls upon a third surveyor to make an award, a third surveyor will be appointed.
Is the 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. The award becomes absolute after the 14 days have expired.
A party should only appeal an award if they believe that the surveyors have acted beyond their powers or if there is a procedural mistake.
Who pays the surveyor’s costs?
In relation to the Act, costs can be considered based on different scenarios:
- If the works are solely for the building owner’s benefit, then they will pay all the costs associated with drawing up the award including the adjoining owner’s surveyor’s costs.
- In some situations (e.g., where the works are necessary due to defect or need of repair), the costs are split based on the use each owner has of the structure or wall concerned.
- The surveyor will decide who pays the fees for drawing up the award and for checking that the work has been carried out in accordance with the award.
What if I believe there is a risk the proposed works will not be completed?
You can ask for security for expenses before the work starts. The security can be agreed upon with the building owner or determined by the surveyor. This is usually reserved for complex work and the amount granted in security will be proportionate to the work and the associated risks.
My neighbour has started the work, but I haven’t received notice under the Party Wall Act. What can I do?
Unless a notice under the Act is served on you, the Act is not invoked, and you cannot appoint surveyors under the Act’s dispute resolution scheme. Any such appointment and the resulting award will most likely be deemed invalid by the Court.
Although the Act provides no enforcement procedures for failing to serve a notice, you might still seek recourse in trespass and/or nuisance and might be able to apply for an interim injunction to stop the works, pending the service of a notice under the Act and the engagement of party wall surveyors.
Comment
The Act is there to regularise building works done on a party wall/structure in a way that ensures your property is protected.
Whether you are concerned that building works covered by the Act have commenced, and you have not been served with a notice or you are not sure whether the Act applies to the proposed works at all, it is essential that you act quickly and take legal advice as soon as possible.
How can Nelsons help
For more information concerning the subjects discussed in this article, please contact a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or contact us via our online form.
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