Keoghs Insight

Author

James Dixon

Party Walls etc Act 1996

AWARE30/04/2014
Property Insurance Aware 2

Unfortunately, neighbours can and do fall out for a number of reasons, particularly when building works are being undertaken. Most people are aware that they may need to seek permission from their local planning authority, before commencing building projects and will seek the necessary advice. However, not everyone is aware of the Party Walls etc Act 1996 (the Act) and the need to engage with their neighbours, if they are undertaking any projects big or small, which may affect a party wall.

What is a party wall?

The starting point for establishing whether the Act applies is to see if the planned works will involve a party wall. The Act itself, rather unhelpfully, does not provide a definition of a party wall. However, Government guidance advises that a party wall is:

  • A wall that stands on the lands of two or more owners and forms part of a building
  • A wall that stands on the lands of two or more owners but does not form part of a building, such as a garden wall
  • A wall that is on one owner’s land but is used by two or more owners to separate their buildings, and
  • A structure, such as a wall, floor or other, which separates buildings or parts of buildings in different ownership e.g. flats

If any planned work may affect such a wall or party structure, the Act may apply.

Type of work falling under the Act

Once it has been established that the proposed works will affect a party wall/structure, consideration should be given as to whether any of the proposed works are of a type, which will bring the Act into effect. Examples of such works include:

  • Building a new wall on or at a boundary of two properties
  • Working on a party wall e.g removing a chimney breast, installing a damp proof course and underpinning, and
  • Excavating below the foundation level of the adjoining owner’s property

Whilst the above is indicative of the type of work which would bring the Act into effect it is not an exhaustive list and advice should be sought if it is unclear whether the Act applies.

What the insured should do when the Act applies

If your insured is undertaking any work where the Act applies they must inform all adjoining owners two months before any planned building works are due to be commenced. To do this a notice should be served on the adjoining owners, which will then be valid for 12 months. The Act does not say what format the notice must take, however it is recommended that the following information is included within the notice:

  • Name and address of all property owners
  • The address of the building to be worked on
  • A full description of the works proposed, and
  • The proposed start date

If the proposed works include excavation, the notice must state whether there is any proposal to safeguard the adjoining building or structure. Once the notice has been served, the adjoining owner has 14 days to respond.

Procedure following notice

Once a notice has been served, the adjoining owner may:

  • Give consent in writing
  • Refuse to consent to the work proposed, or
  • Do nothing

If the adjoining owner does nothing, then for the purposes of the Act, a dispute is deemed to have arisen. There is also the option for the adjoining owner to serve a counter notice within one month, setting out the additional or modified work they require. In this instance the adjoining owner should advise of their intention to serve a counter notice within 14 days of the original notice being served. A response to the counter notice must be served within 14 days or a dispute is deemed to have arisen.

What if a dispute arises?

If a dispute arises the parties should jointly instruct an agreed surveyor to draw up an award. Alternatively, the parties can appoint their own surveyors to draw up an award. If this option is undertaken and the appointed surveyors and/or the parties cannot agree an award, then a third surveyor will be appointed to make an award. The third surveyor will consider the interest and rights of the parties and in making the award will set out:

  • The work that will be carried out
  • When and how the work will be carried out
  • Any additional work required, and
  • Who pays the fees for drawing up the award

In addition to the above, the award may set out the condition of the adjoining property before works are commenced and will allow access to the surveyors to inspect the works as works are ongoing.

What if a party is unhappy with the award?

If a party is unhappy with the award made, they may appeal to the county court, within 14 days of the award being served on them. Unless it is modified or rescinded on appeal then the award is final and binding.

What if a party doesn’t comply with the Act?

As we have already seen, disputes between neighbours can arise, simply because there has been no dialogue between them about any building works. In such circumstances, it is not uncommon for the adjoining property owner to start citing the Act. Contrary to popular belief, non-compliance with the Act does not of itself give rise to a cause of action. However, following the case of Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816, if a party does not comply with the Act, the burden of proof is reversed. Essentially what this means is, if the adjoining neighbour complains of damage to their property, if the damage is of the sort you would expect from the type of work being undertaken it is for the person undertaking the work to prove that their work did not cause the damage.

What steps should your insured take?

Rather simply, if your insured is planning to undertake any building work and there is a risk that a party wall may be involved, seek advice. If he does not and the adjoining property is damaged it will be for him to prove that his building works did not cause the damage.