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Party walls


Party walls made simple

A beginner's guide to party walls by William Hanbury of Exchange Chambers, Leeds.

April 2007

Introduction

The law relating to party walls is a relatively self-contained area being found largely in the Party Wall Act 1996.

The Act is complex and technical and often advice of specialists will be needed, for example, from surveyors who practise in the area.

It is my aim here to look at the types of problem that arise in practice. The starting position for resolving these problems will nearly always be the Act itself, but, as we shall see, the common law is sometimes still relevant.

What is the position between two owners of adjoining parcels of land which are not built on?

This is not covered by the Act but by the common law. Where the support is derived from land rather than buildings or structures the position is more complex. Where land is supported it is thought that provided the support has been derived naturally from the neighbour's land as long as that land has been there a natural right of support arises, which cannot be removed. This right arises naturally and does not require any grant, actual or fictitious. Where however the neighbour deriving support from his neighbour's land places an additional burden on that land by building on it, it is thought that no natural right of support exists and the neighbour must establish an easement of support by one of the recognised means by which such an easement may be acquired (See Dalton v Angus (1881) 6 App Cas 740).

What is a party wall?

A party wall is a structure that straddles the boundary between two properties as opposed to a structure that demarcates the boundary between two properties, known as a "boundary structure'.

What was the position before the Party Wall Act?

Where a feature is party mutual rights of support arise. However, these rights are negative in character. Therefore in areas that were not covered by local legislation (everywhere other than London and Bristol), in the absence of a right to do so in the deeds, neither neighbour could remove the support derived from the other's structure. However, neither party was under a positive obligation to repair the structure in question.

How do I know if the wall is party?

Usually walls are declared party in the deeds, but it is not always straightforward to find this out. In Burns v Morton [1999] EWCA Civ 1514 the Court of Appeal had to grapple with the term "dividing structure'. They held that, as a matter of construction, this term referred to a party wall.

"T" marks on the plan accompanying the conveyance or transfer will be strong evidence that ownership of the structure in question is "boundary" rather than "party'.

However, it is often difficult to tell precisely where the boundary is in the absence of an express declaration to the effect that dividing structures are party. Remember that in registered land the title plan shows only the general boundary.

The following additional points should also be noted:
  • Beware of assuming that the wall follows the line of the paper title if this can be identified. As the Court of Appeal recently indicated in Palfrey v Wilson [2007] EWCA Civ 94, it is possible for a feature that appears to be party in fact to be a boundary structure by operation of the law of adverse possession.
  • A wall may be party for part of its distance and boundary in another part, e .g. where it provides essential support to a building at ground floor level but no support at first floor level it will be party up to first floor level.

What do I need to know about the Act?

  • The Act does not just apply to party walls proper (as defined in section 20 as "a wall that stands on the lands of different owners to a greater extent than any artificially formed support" but applies to certain works near the boundary). In particular, the Act applies where new building work is carried out within 3 meters of the boundary and the new building in question will be built with foundations deeper than the adjoining building owner's building. There are also restrictions on building within 6 meters in certain cases.
  • The Act seeks to provide a comprehensive code for the conduct of work to structures of the types covered by the Act. One does not therefore need to consider rights of support that arise at common law. This is because the substantive rights that exist in the party wall continue but are suspended as long as the Act is complied with (see s.9 (a)).
  • The Act has a code of notices and counter-notices, the effect of which is that there will be deemed to be a dispute between neighbours if the adjoining owner (the neighbour who is not intending to carry out work) does not consent to the work. This applies both to new building work and proposed work to existing party walls. Where new work is proposed, however, the building owner may carry out the work proposed provided he builds the wall or structure wholly on his own land (save for the footings) even if there is an objection by his neighbour. However, for work to be within the Act the work must be begun within a certain period of the service of the notice.

How do we resolve our dispute?

  • It is sometimes forgotten that the move towards ADR, particularly mediation, has been a recent phenomenon. In 1992, when the related legislation, the Access to Neighbouring Land Act 1992 ("1992 Act"), was enacted, the county court was designated as the forum for dispute resolution. By the time of the 1996 Act, the legislature chose resolution by surveyors.
  • As has been stated the Act provides a comprehensive code for the resolution of disputes. The predominant view is therefore that there is no scope for ADR or arbitration. The role of the county court is only as a forum for appeals, although there is some scope for challenging awards on the grounds of bias and so forth.
  • Section 10 provides that any dispute in respect of any work to which the Act relates must be resolved by the building owner first appointing a surveyor, then a second surveyor being appointed for the adjoining owner. A third surveyor is appointed to resolve any dispute between those surveyors. Thus, the Act was good news for party wall surveyors! Finally, there is a right of appeal to the county court.
  • The role of the county court was recently clarified in Zissis v Lukomski [2006] EWCA Civ 341 in which the Court of Appeal said that the disgruntled neighbour has two choices:
  • He can apply to set aside the award because it is "invalid", for example, because it was made in excess of jurisdiction. This would be by Part 8 application;
  • He can appeal the decision. This appeal would be by way of a rehearing and in the context of the Act; new evidence would and usually should be called at the appeal hearing.

Can I get compensation?

Yes, although there has been a debate over the extent to which business losses could be awarded. However, it is now thought that the award may cover any loses caused by the work including business losses (see section 10 (10)). These losses should be dealt with in the award.

What if my neighbour ignores the Act?

  • In this situation you return to the common law position. Any entry over the boundary line constitutes a trespass and any cracks vibrations and other damage which would otherwise be covered by the award would constitute a nuisance (see Louis v Sadiq [1996] EWCA Civ 935). It is not the case that the court can retrospectively extend time for complying with the notice requirements, although the parties could presumably agree to waive these.
  • The building owner who has failed to comply with the notice requirements in the Act will have no legal right to carry out the work, in the absence of his neighbour's consent, a right in the deeds or another legal right, for example, under the 1992 Act. If he simply proceeds regardless he will receive short shrift from the courts (see Roadrunner Properties v Dean [2003] EWCA 1816).

How does the Act work in practice?

Reasonably well, although a number of important points remain to be resolved and the whole process seems complex and expensive. Certainly, there could have been cheaper and swifter procedures devised. However, the legislation looks set to be on the statute books for many years to come.

William Hanbury

For more information go to: www.partywalls.org.uk

For details of a book on party walls click here.


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