Collier Stevens Chartered Surveyors, Party Wall Surveyors

Work on existing party walls (section 2 of the Act)
 

4) What are my rights under the Act if I want to do work on an existing party wall ?
 

The Act provides a building owner, who wishes to carry out various sorts of work to an existing party wall, with additional rights to do so. These go beyond ordinary common law rights.

Section 2 of the Act lists what work can be done. The most commonly used rights are:

• to cut into a wall to take the bearing of a beam (for example for a loft conversion), or to insert a damp proof course all the way through the wall
• to raise the whole party wall and, if necessary, cut off any projections which prevent you from doing so
• to demolish and rebuild the party wall
• to underpin the whole wall
• to protect two adjoining walls by putting a flashing from the higher over the lower.

5) What are my duties under the Act?
 

If you intend to carry out any of the works mentioned in paragraph 4, you must inform all adjoining owners - see paragraphs 7 and 8. You must not even cut into your own half of the wall without telling the next door neighbour of your intentions - see paragraph 6.

The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, adjoining owners may seek to stop your work through a court injunction or seek other legal redress.

A neighbour cannot stop someone from exercising the rights given to them by the Act, but he can influence how and when the work is done - see paragraph 10.

The Act also says that a building owner must not cause unnecessary inconvenience. The building owner must provide compensation for any damage and must provide temporary protection for buildings and property where necessary.

6) What about things like putting up shelves or wall units, or installing recessed electric sockets, or removing and renewing plaster?
 

Minor works on a party wall are usually considered to be too trivial to come under the Act. Examples of minor works include:

• drilling into your own half of a party wall to fix plugs and screws for ordinary wall units or shelving
• drilling into your own half of a party wall to add/replace recessed electric wiring and sockets
• replastering.

The key point is whether your planned work might have consequences for the structural strength and support functions of the party wall. If you are in doubt about whether your planned work requires a notice you might wish to seek advice from a qualified building professional.

7) Who counts as an "adjoining owner"?
 

Essentially, an adjoining owner is anyone with an interest greater than a tenancy from year to year in the adjoining property. If the next door property is occupied by a long term tenant or leaseholder it will be necessary to notify the landlord as well. Where there is more than one owner of the property, or more than one adjoining property, it is your duty to notify all of them.

8) How do I inform the adjoining owner or owners?
 

It is obviously best to discuss your planned work fully with your neighbours before you (or your professional adviser) give notice, in writing, about what you plan to do. If you have already ironed out possible snags with your neighbours, this should mean that they will readily give consent in response to your notice. You do not need to appoint a professional adviser to give the notice on your behalf.

Whilst there is no official form for giving notice under the Act, your notice must include the following details:

• your own name and address
• the building’s address (if different)
• a clear statement that your notice is a notice under the provisions of the Act (you may want to mention the section(s) concerned)
• full details of what you propose to do (including plans where appropriate)
• when you propose to start.

You may deliver the notice in person or send it by post. Where the neighbouring property is empty or the owner is not known, you may address the notice to "the owner" of the premises and fix it to a conspicuous part of the premises. You do not need to tell the local authority about your notice.

9) How long in advance do I have to serve the notice?
 

At least two months before the planned starting date for work to the party wall. The notice is only valid for a year, so do not serve it too long before you wish to start.

10) What happens after I serve notice?
 

A person who receives a notice about intended work may give his consent in writing, or give a counter-notice setting out what additional or modified work he would like to be carried out. A person who receives a notice about intended work, and intends to serve a counter-notice, should let his neighbour know within 14 days.

If, after a period of 14 days from the service of your notice, the person receiving the notice has done nothing, a dispute is regarded as having arisen. The procedure explained in paragraph 11 then comes into play.

If you receive a counter-notice you must respond to it within 14 days. If you do not, a dispute is regarded as having arisen - see paragraph 11.

As mentioned in paragraph 8, your notice should not come as a surprise. If you have already ironed out possible snags with your neighbours, this should mean that they will readily give consent in response to your notice.

11) What if I cannot reach agreement with my neighbour on the work to be done to the party wall?
 

The best way of settling any point of difference is by friendly discussion with your neighbour. Agreements should always be put in writing.

If you cannot reach agreement with your neighbour, the next best thing is to appoint, jointly, what the Act calls an "agreed surveyor" to draw up an "award". The agreed surveyor should preferably not be the same person that you intend to employ to supervise your building work - see paragraph 12.

Alternatively, each neighbour can appoint a surveyor to draw up the award together. The two surveyors will nominate a third surveyor who would be called in only if the two surveyors cannot agree.

In all cases, surveyors appointed under the dispute resolution procedure of the Act to draw up an award must behave impartially and consider the interests of both neighbours. They do not act as advocates for each side.

12) Who can I appoint as a surveyor in the event of a dispute?
 

The term "surveyor" is defined in the Act as any person who is not a party to the matter. This means that you can appoint almost anyone you like to act in this capacity. However, some people are obviously more suitable than others. You may wish to look for a qualified building professional with some experience or knowledge of party wall matters - see the further information section at the end of this booklet.

It is recommended that you and your neighbour do not choose the person you have engaged to supervise the building works to be the "agreed surveyor" - it is difficult to be the person responsible for ensuring the completion of the work at the same time as giving full regard to the rights of the neighbours.

13) What does the surveyor do?
 

The surveyor (or surveyors) will prepare an "award" (also known as a "party wall award"). This is a document which:

• sets out the work that will be carried out
• says when and how the work is to be carried out (for example, not at weekends if the buildings are domestic properties)
• records the condition of next door before the work begins (so that any damage can be properly attributed and made good)
• allows access for the surveyors to inspect the works while they’re going on (to see that they are in accordance with the award).

It is a good idea to keep a copy of the award with your property deeds.

14) Who pays the surveyor’s fees?
 

The surveyor (or surveyors) 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. Usually the owner who first planned the work will pay all costs associated with drawing up the award.

15) Is the surveyor’s award final?
 

Either side has 14 days to appeal to the county court against an award. An appeal should only be made to the county court if an owner believes that the surveyors have acted beyond their powers.

16) Who pays for the building works?
 

Your agreement with the neighbouring owner, or the award in the event of a dispute, will set this out.

The general principle in the Act is that the building owner who initiated the work pays for it. However, there are cases where the adjoining owner may pay part of the cost, for example:

• where work to a party wall is needed because of defects or lack of repair for which the adjoining owner may be responsible
• where an adjoining owner requests that additional work should be done.

Where the dispute resolution procedure is called upon, the award may deal with apportionment of the costs of the work. The dispute procedure may be used specifically to resolve the question of costs.

17) What happens if the neighbours won’t cooperate?
 

If a dispute has arisen and the neighbouring owner refuses to appoint a surveyor under the dispute resolution procedure, you can appoint a second surveyor on his behalf, so that the procedure can go ahead - see paragraphs 11 and 12.

18) What about access to neighbouring property?
 

Under the Act, an adjoining occupier must, when necessary, let in your workmen, your own surveyor or architect etc., and any surveyors appointed as part of the dispute resolution procedure. You must give the adjoining owner and occupier notice of your intention to exercise these rights of entry. The Act says that 14 days’ notice must usually be given.

It is an offence, which can be prosecuted in the magistrates’ court, to refuse entry to or obstruct someone who is entitled to enter premises under the Act, if the offender knows that the person is entitled to be there.

If the adjoining property is empty, your workmen and your own surveyor or architect etc. may enter the premises if they are accompanied by a police officer.

19) As a neighbouring owner, what can I do to guard against the risk that the building owner may leave work on the party wall unfinished?
 

If there is a risk that you will be left in difficulties if the building owner stops work at an inconvenient stage, you can ask him, before he starts work, to make available an amount of money that would allow you to restore the status quo if he fails to do so. The money remains his throughout, but if, for example, you need to have a wall rebuilt, you can draw on that security to pay for the rebuilding.