FREQUENTLY ASKED QUESTIONS
What can I do if the Building Owner hasn’t made good any damage to my building or the Adjoining Owner won't pay his agreed share?
He must. If he does not, the Adjoining Owner can do the making good and recover the costs as a civil debt. This means action in the County Court; up to £5000 in the small claims division, above £5000, the full process. The same applies if the Adjoining Owner refuses to pay his contribution to the cost of erecting a party structure to which he is obliged to contribute. If the party fails to comply with an Order from the Court, he is at risk of imprisonment for contempt until the contempt is purged. This usually means when the money is paid over.
My neighbour is building and hasn’t served Notices or told me what he is doing. What can I do?
If the Building Owner is doing work on or to a party structure (wall, floor, or fence wall) or digging within the prescribed depths and distances without serving Notices, he is acting outside the law and can be stopped. If you are certain that he is acting in a way that requires action under the Act but has not followed it, you should seek an injunction from the County Court. You should take legal advice first but the procedure is fairly simple.
You will apply for Interlocutory Relief. This is heard in chambers and you tell the Judge what is happening and ask him to grant an injunction. He will require the Adjoining Owner to give the "usual undertakings" or cross-undertakings in damages. This means that if you have got it wrong, your rights have not been infringed and the Building Owner is put to costs because of the injunction, you will bear those costs. Think about it carefully.
If you are a Building Owner and are served with an injunction, STOP! If you do not you could be imprisoned for contempt. Only continue if you are absolutely certain that what you are doing is not covered by the terms of the injunction. Again, you should take legal advice to be sure of your position. The risks really are not worth taking a chance.
The new building is blocking out my light. Can I stop it?
Not under this Act. The Party Wall Etc Act 1996 relates to the building processes involved in building on or close to the Adjoining Owner's building to ensure that damage is not done or, where it is, it can be properly made good again. It does not affect easements of light, access, air or support to land.
Many party wall surveyors also have considerable expertise with regard to these matters and can advise you and your legal advisers whether or not you have rights to a flow of light or air and whether the proposals will adversely affect those rights. There is no right to sunlight or to a view and the amount of light "necessary" in terms of the law can be surprisingly little. Specialist advice is essential before taking action on the grounds of injury to these easements.
What about safety and security during the work?
The Building Owner must protect the party structure from the weather and maintain structural and defensive integrity of the Adjoining Owner's property. He must provide all necessary hoardings, shoring, fans, temporary supports and security provisions to protect the Adjoining Owner and his visitors from harm arising from the work.
If I consent to a Notice can I still appoint a surveyor later if a dispute subsequently arises?
Yes, provided the disputed matter is connected with work that was the subject of the notice. This is also stated in the Government's Explanatory Booklet (at the beginning of Part 3: Adjoining Owners/Occupiers).
The question recently came before His Honour Judge Birtles, sitting in the Mayors & City of London Court, in an appeal against an award under the Party Wall etc. Act 1996. The judge ruled that the surveyors did have jurisdiction to settle the disputed matter by award.
Who pays for what?
Generally speaking, the Building Owner pays the costs of the work and all the surveyors' fees. However, there are provisions for certain costs to be borne by the Adjoining Owner as well, such as:
Where a new party fence wall is built, then the costs are shared between the Owners equally, otherwise the Building Owner builds the wall in his own land and it is his wall, the Adjoining Owner having no rights in it.
If the Adjoining Owner has already raised the party wall and the Building Owner now wishes to enclose on it, he must pay the Adjoining Owner a proportion of the present cost of building the wall.
Where a party structure has to be rebuilt because of a lack of maintenance, the costs are usually shared equally.
The Building Owner can place mass concrete foundations in the adjoining land without compensating the Adjoining Owner but not reinforced concrete foundations.
The Building Owner must pay the Adjoining Owner for any losses or damage caused by his exercise of his rights under the Act. Just being next to a building site does not count, but if the works materially affected the Adjoining Owner's business, he might well have a justified claim. Any physical damage done to the adjoining property must either be made good by the Building Owner or he must pay a proper sum to the Adjoining Owner to allow him to have the damage made good.
I don’t like the terms of the Award; what can I do?
Either party may appeal against the terms of the Award, whether it is made by an agreed surveyor, two surveyors or the third surveyor. The appeal must be lodged with the County Court within 14 days of its publication. Usually the appeal will be on a point of law not a point of fact and the Court is unlikely to give you much support if your complaint against the Award is because it allows something you do not like or prevents something you want to do on technical grounds. If you intend to appeal against an Award, you must seek legal advice first because the costs could be huge.
Can you stop the Building Owner coming onto your land?
Only if he does not comply with the Act's provisions. You may not like what he is doing but if he has satisfied the Act's requirements then he has rights to do work from your land that cannot reasonably be done any other way. If you try to prevent him or his workmen or surveyor from doing what the Law allows, then you are at risk, not from a civil action, but a criminal one carrying with it the risk of a fine on Level 3 of the scale and a criminal conviction.
May a Building Owner start work before the surveyors’ Award is in place?
No. The surveyors' award should be in place before work covered by the Act may proceed.
Where the surveyors are tantalisingly close to making their award it can be tempting for a Building Owner to proceed with the work in the expectation that the paperwork will follow. If he does proceed he will be doing so unlawfully and will be at risk of an injunction.
For more information, refer to the news item entitled Court grants injunction to halt unauthorised works and the case of Udal v Dutton  EWHC2862 (TCC).
Can the Building Owner’s contractors go next door?
Yes and no. The Act gives the Building Owner, his servants, agents and workmen rights to go onto the adjoining land in order to carry out work authorised by the Act that cannot be done any other way. They cannot just decide to do it that way because it is more convenient and they have no right to go next door to do work that is not directly covered by the Act.
Before entering the adjoining land they must give reasonable notice; this is normally 14 days but can be "reasonable" in the case of emergency. The more urgent, the less notice is necessary but the emergency must be demonstrable, not just because the contractors had not thought about it before.
If the Adjoining Owner does not respond, the Building Owner can break in but he must be accompanied by a constable or other Police Officer. He must do the minimum damage and must make it good and resecure the premises afterwards. This is very rare, most local Police stations know nothing about the Act and are very loath to give one a constable.
If you plan to use these powers, you should discuss the matter in advance with the local Superintendent or Chief Inspector and be prepared to have to convince him or her that you have rights, that you have complied with the responsibilities laid on you under the Act and that he has a duty to give you a constable. Do not just breeze up to the front desk and expect to leave the station with a phalanx of policemen to help you.
What can I do about the noise and disturbance of building work next door?
The simple answer is "tough" but is a little more complex than that. The Building Owner can cause the Adjoining Owner and/or occupier reasonable disturbance. He must not cause unnecessary inconvenience. What is necessary is, in each case, a question of fact on the merits of the particular circumstances. It is not what is convenient or less costly for the Building Owner's contractors. If the work could be done less inconveniently but at more cost, then the Building Owner must shoulder that cost.
Where the Building Owner's activities cause a direct and measurable loss to the Adjoining Owner or Occupier, then he would be liable to compensate them in money. The mere inconvenience of having a building site next door would not count but if the activities on the site were to mean, for example, that a shop had to close during the works, then that would be claimable from the Building Owner.
The Building Owner is still bound by normal health and safety and environmental protection legislation. The Act does not relieve him from the ordinary duty to keep noise and vibration within defined limits or to work within specified hours.
What must the Building Owner do?
In general, he must serve a formal notice on the Adjoining Owner telling him what is going on. Notices must be served either one month or two months before work is due to start. These notice periods are shown in the table in the previous question with one star for one month and two stars for two.
If the Local Authority have served a Dangerous Structures Notice, the Building Owner does not have to serve a Party Structures Notice for work he is compelled to do by the Local Authority. If he chooses to do more, then he must serve notice in respect of the additional work.
I have already started work and have only just found out about my obligation to serve notice. What should I do?
The works that have already been undertaken are unlawful and you should try to regularise this, as best you can, by obtaining confirmation that the adjoining owners have no objection to them. You cannot serve Notice retrospectively so a simple letter to the adjoining owners is probably the best way forward, enclosing particulars of the work that have been carried out.
If they are feeling co-operative, the adjoining owners may be happy to confirm agreement or they may wish reserve their position until they have taken advice on the likely effect of the works on their property. You should consider giving an undertaking on fees so that they can take appropriate advice from a surveyor in order that the issue can be resolved amicably.
If there is still more notifiable work to do, you should cease this work and, in addition to the abovementioned simple letter, you should serve notice on the adjoining owners for the remaining work. If disputes arise regarding the remaining work that is the subject of the Notice, surveyors can be appointed under Section 10 of the Act to deal with them. However, their statutory appointment does not give them any power to deal with the work already carried out. Of course the parties may, if they wish, instruct the surveyors to advise on the work already carried out, but it remains for the parties to agree these works.
If agreement cannot be reached on the works that have already been carried out, for example whether they have caused loss or damage, it will fall to the adjoining owners to decide whether or not to litigate.
I will be converting the loft in my mid-terrace house. Do I need to serve notice to the owners of the adjoining property?
The Act confers rights to do work to a party wall, subject to first serving notice on "any adjoining owner". The Act defines an adjoining owner as "any owner of land, buildings, storeys or rooms adjoining those of the building owner". It appears that you need to serve notice on any owner whose storeys or rooms adjoin the party wall even if they do not physically adjoin at the point where the work is taking place.
You may wonder how relevant it is to serve notice on someone two storeys below for, say, cutting in a flashing at roof level. It is for this reason that many surveyors suggest serving notice on the adjoining owners whose flats are immediately adjacent to the work and perhaps one storey higher or lower, but possibly not on others who are more remote.
Is there a special way of serving the notice?
It is not like a Court Writ which has to be served in a special way. It can be delivered in person or sent by post. For legal bodies, it is sent to the secretary or clerk at the body's registered office.
If you can't establish who the owner of the property is, the Notice can be addressed to "The Owner" and be given to someone found on the premises or be pinned up to the front door.
As with all important documents, keep a copy.
Does the notice have to be in a special form?
No special forms are necessary, however organisations such as the Pyramus & Thisbe Club and the Royal Institution of Chartered Surveyors publish useful pro formas. These are simple to use and help make sure nothing is missed out.
The Notice must state:
- The name and address of the Building Owner.
- The nature and particulars of the proposed work and, where the Building Owner intends to build reinforced concrete foundations, plans, sections and calculations.
- The date when work is proposed to start.
In the case of Notices of Adjacent Excavation (also known as Three Metre/Six Metre Notices), plans and sections must be appended showing the position of any new building and the site and depth of excavation.
What do the surveyors do?
Usually, the surveyors prepare a schedule of condition of the Adjoining Owner's property. This records the state of the premises so that any damage caused by the work can be identified and put right properly. This acts to protect both parties from unfair claims.
The surveyors prepare an Award that sets out who can do what, how and when. The Award may set out times of noisy work, arrangements for access to the Adjoining Owner's building and the like.
During the progress of the work, they may make a number of interim inspections to check that the rights and obligations of both parties are being properly looked after or discharged. The more complex the project, the more often the surveyors will need to be involved.
At the end of the works, the surveyors check the schedule of condition to identify any damage and agree the remedial work needed or compensation in lieu.
What if the surveyors can’t agree or an owner tries to pressure his surveyor into not agreeing to something?
The Act limits the surveyors' scope of action to matters covered by the Act and obliges the surveyors to try to agree matters between them. If one surveyor refuses to act by declining to sign an Award for instance, the other surveyor can serve a notice on him and act for both parties after ten days. He can sign the awards ex parte and only by appealing against the Award within 14 days in the County Court can it be overturned.
If the surveyors cannot agree, then either party or both of them can make a reference to the third surveyor. He hears evidence from both sides and makes his Award, which is binding, on both parties. He can award how the costs of the reference are to be borne; if he considers that one or other party has been vexatious and caused the reference to be made, he may award the costs of it wholly against them. This could be the Adjoining Owner if his, or his surveyor's, objections have been frivolous or relate to matters outside the Act.
Who can be a ‘surveyor’?
Almost anyone can: they do not have to be Chartered Surveyors. The parties, no matter how well qualified, cannot be. Many architects do party structures work, some engineers do and even one or two solicitors. It is important that whoever is appointed as surveyor is knowledgeable and competent to deal with party structures work.
A directory of members of the Pyramus & Thisbe Club is available on this website. Whilst expertise and knowledge of party wall matters are not prerequisites to membership, in practice most members have the necessary skills to act as a surveyor in accordance with the Act.
Once a surveyor is appointed, he cannot be dismissed. This prevents an Owner waiting until awards are about to be signed and then sacking his surveyor. If he dies or becomes too ill to continue, another surveyor has to be appointed in his place.
What does an Adjoining Owner do if he receives a Notice?
Although he can do nothing, he should do something. He can consent to the work and that is all there is to it. Work can start immediately. Both parties should keep the documentation and file it safely. In the vast majority of cases where simple work is proposed, there is no reason for a dispute to arise and consent can be given safely.
Alternatively he can dissent from the Notice. He should not do this just to be awkward or to make the Building Owner jump through the hoop nor to frustrate the Building Owner's proposals. The Planning process is the proper place for such objections. Having dissented, the parties will need to appoint a surveyor to settle the matters that are in dispute.
If he does nothing for fourteen days, then in the case of Party Structure Notices and Notices of Adjacent Excavation (also referred to as Three Metre/Six Metre Notices) it acts automatically as a deemed dissent from the Notice. The parties will then need to appoint a surveyor to settle the matter.
What work does the Act apply to?
The Act applies where the Building Owner wants to do any of the following:
1. Build a wall astride the boundary between his land and next door's land
2. Build a wall on his own land but up to the boundary line
3. Where a structure already exists astride the boundary or the external wall of a building forms the boundary and the Building Owner wants to:
- Underpin, thicken or raise the wall
- Repair or demolish and rebuild a party wall where it is in very poor order
- Demolish walls or arches not complying with Building Regulations and rebuild them so that they do
- Demolish a party structure and to rebuild it to take greater loads than before
- Cut into a party structure for any purpose, including to inject a damp proof course
- Cut away projecting parts from a party wall
- Cut away projecting or overhanging parts of the Adjoining Owner's building to enable the - - Building Owner to carry out party structures works
- Cut into the adjoining building to insert a flashing
- Raise or rebuild a party fence wall or to use a party fence wall as a party wall
- Demolish a party wall and clear it away
- Expose a party wall previously covered up or protected
4. Where the Building Owner intends to excavate below the level of the bottom of next door's foundations within a distance of 3 metres
5. Where the Building Owner intends to excavate or build below "the 45° line" drawn down from the bottom of the Adjoining Owner's foundations within 6 metres. (See Diagrams 6 & 7 in the Government's Explanatory Booklet.)
Am I an ‘owner’?
If you own the freehold or a leasehold for more than a year in commercial, residential or industrial property or if you have entered into a contract to purchase the freehold or an agreement for a lease for greater than a year you are an 'owner' for the purposes of the Act.
An owner can be a physical person or a legal person such as a company, unincorporated association or partnership. A lender is not an owner so a mortgage lender cannot serve notices nor is it entitled to receive them.
Is anyone exempt from the Act?
Yes, - property actually occupied by Her Majesty in right of the Duchy of Lancaster and land actually occupied by the Duke of Cornwall (The Prince of Wales). Land in Inner London with an interest held by the Inns of Court (The Inner and Middle Temple, Lincoln's Inn and Gray's Inn) are all exempt. Other Crown lands and Government departments are bound by the Act like everyone else.
What is a party structure?
In its most simple form, a party wall divides the buildings of two owners and the boundary between ownerships is generally somewhere within the thickness of the wall.
However a party wall can divide two buildings, but where the boundary is beyond the width of the wall.
A party fence wall divides lands not buildings, as shown as the 'Party Fence Wall' diagrams below.
Finally, a party floor divides horizontal ownerships in flats and commercial buildings.