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Common party wall issues

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Posted by Philip Harris on 05 November 2012

Philip Harris Partner & Solicitor-Advocate

It is generally understood that the Party Wall Act 1996 (“the Act”) legitimises activities in relation to party walls which would otherwise be nuisance or trespass. But is the Act purely “permissive”, or does it have teeth?

Generally, a breach of a statutory obligation gives rise to a tortious claim. If someone does not serve the right kind of notice in the right way under the Act, then he deprives his neighbour, the adjoining owner, of the right to invoke the dispute procedure under section 10 of the Act and have a Party Wall Award made. That is a major disadvantage to the adjoining owner who otherwise would be able to rely on the Party Wall Award and have the certainty of knowing what works could be done under it and in what manner.

Suppose a person excavates on his land within 3 metres of a building on neighbouring land to a greater depth than the existing foundation of that building without serving an excavation notice but without causing damage to the building. Is there a remedy for breach of the statutory regime?

Alternatively, if a person builds a wall, which is wholly on his own land, at the line of the junction between 2 properties is there a remedy for his failure to serve notice under section 1(5), even though no part of the wall or its footings protrudes into the neighbouring land? 

Such questions still lack clear legal answers in the construction sector. The better view surely is that there is a right of action for breach of the Act which prevents a party’s right to refer a dispute to a Party Wall Surveyor for an award under section 10.

The case of Kaye v Lawrence (2010) may cast some light on this. In that case, Judge Ramsay decided that common law rights are supplanted by the Act, at least in the case of excavation under section 6. There is no reason why this should not also apply to section 1(5). So a building owner’s right to do work on his own land is subject to compliance with the Act and its notice provisions. 

Party Walls in the context of flats and maisonettes

Someone who is a tenant with a lease for more than a year is an owner for the purposes of section 20 of the Act. So tenants may need to serve notice on other tenants to do party wall works. This depends on the extent of the physical demise. 

Landlords frequently ask us whether they need to serve a party structure notice. The starting point is to look at section 3(3)(a) of the Act, which allows works to be done by consent. 

Ask – as a landlord – do I have the consent of the adjoining owners and occupiers? 

See section 20 of the Act for the definitions of these people. Then look at the lease arrangements and check whether the leases are for more than one year. Finally, look at the covenants and “excepted rights” in the leases and check:-

  1. do they provide that tenants will allow works to party walls/structures, including access for those works?
  2. do they provide as a condition of any assignment or sub-lease that the assignee or sub-lessee enters into a direct covenant or agreement with the landlord to allow party wall works? 
  3. check whether all adjoining occupiers are also adjoining owners. Frequently, this is not the case as children or other relatives or friends may be living in the property but are not lessees. 

Having asked these questions, take stock and assess the risk of proceeding without serving a party wall notice. 

In any event, a landlord or management committee should notify of the intended work in advance, even if a party wall notice is considered unnecessary. You should consider the risk of contravening the undisturbed possession/quiet enjoyment covenants.

If covenants provide consent to party structure works by all tenants, but not all occupiers are tenants, take stock of the risk of proceeding without serving a party wall notice. You contravene the Act if adjoining occupiers do not consent in writing. Consider section 7(1) and 7(2). Note that adjoining occupiers cannot rely upon section 10 to invoke the party surveyor procedure and obtain a Party Wall Award, but they can still claim compensation. So, if an occupier’s computer is damaged by water ingress arising from the works, there could be a substantial claim.

A related issue is the question “What are party wall/structures as far as flats and maisonettes are concerned?” 

Again, look at section 20 for the definition of “adjoining”. Note that a vertical, outside flank wall where flat B is above flat A may be a common wall which is not “standing” on the lands of different owners nor separating those dwellings. Strictly, it may not be a party wall at all. It is a matter of interpretation whether you regard it as a party wall. Note that some leases say that walls that are structures that do not strictly fall under the Act are “deemed” to be party structures. 

Rights of support

Just as landlord and tenant law is bound up with party wall matters, so are rights of support. If the man in the flat below undertakes work to his wall, even if it is not a party wall, his works may be actionable under the covenant of support in his lease. Note that there is no natural right of support to a building. This may be acquired by a grant or long user (over 20 years’ use).

Easements of support may be infringed by party wall works, for example, in the case of semi-detached and terraced houses. This will be a breach of section 9 of the Act. However, section 2 allows works that would ordinarily be interference with the rights of support to be undertaken temporarily, provided there is no permanent interference. There is a liability on the building owner to make good damage. 

The common foundation to several dwelling/units

A structure may be separated into terraced houses, flats, maisonettes or other multi-unit property, especially semi-detached properties. The whole structure suffers from movement. Let us say we are dealing with a terrace. Owner A has approached insurers. They engage surveyors. Underpinning to A’s property is recommended. A serves a section 6 excavation notice on each of his adjoining neighbours. Under section 6(3) of the Act, if required by adjoining owners, A must safeguard their foundations at his expense. If A underpins his own property, the differential movement will occur to his neighbour’s properties. The whole foundation will hinge and crack. Does A have to stabilise the entire foundation at his expense? If so, what does section 11(9) of the Act mean?

What does section 11(11) of the Act mean? Can security for costs be required under section 12(2)(b)? If the solution is for A to build a step-foundation, which goes under the neighbour’s property and the neighbour enjoys the benefit of this, is there the possibility that ownership in that foundation vests in A under section 14(2) of the Act?

One bold surveyor (who shall remain nameless) believes he has the answer to the differential subsidence issue. He says “Provided the underpinning works do not de-stabilise the adjoining property (and it is difficult to see how they could) then there is no necessity to underpin it. The Party Wall Act cannot prevent the building owner from underpinning his property merely because to do so would exaggerate the subsidence of the neighbour’s property. The damage to the neighbour’s property is caused by the neighbour’s property subsiding, not by the work proposed by the adjoining owner”. No doubt the insurance industry would prefer not to see that issue put to the test as if the courts decide on a strict literal interpretation of section 6(3), a decision to underpin one linked property could carry an expensive obligation to safeguard the foundations of the neighbours. 

About the author

Philip Harris

Partner & Solicitor-Advocate

Philip has 30 years’ experience as a construction solicitor and advises on all aspects of construction law.

Philip Harris

Philip has 30 years’ experience as a construction solicitor and advises on all aspects of construction law.

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