Has your neighbour served a Party Wall Notice? Do you need  a Surveyor? Can you stop the work? Appoint your own surveyor?

Q: What work is covered by the Party Wall Etc. Act 1996

A: The Act covers:

• new building on or at the boundary of 2 properties
• work to an existing party wall or party structure
• excavation near to and below the foundation level of neighbouring buildings or structures

• This may include:
• building a new wall on or at the boundary of 2 properties
• cutting into a party wall
• making a party wall taller, shorter or deeper
• removing chimney breasts from a party wall
• knocking down and rebuilding a party wall
• digging below the foundation level of a neighbour’s property

Q: What is a Party Wall?

A:  A party wall is simply a wall that divides two parties and is shared by them. Broadly this might be one of:

• Type A – a wall standing astride the boundary; with only one side part of a building; with both sides part of buildings; or with no attached buildings (like a boundary or garden wall – called a party fence wall; although timber fences aren’t actually covered by the Act).
• Type B – a wall standing wholly on the land of one owner, but used by two owners to separate their buildings. Any part which doesn’t divide two buildings is not ‘party’ and not covered.
• See also Party Structure below.

Q:  What is a Party Fence Wall?

• A:  A party fence wall stands astride the boundary of two properties and does not form part of a building; e.g. a garden or boundary wall. Similar walls which stand wholly on one owners land are not party fence walls and are not covered by the Act. Fences are not covered by the Act.

Q:  What is a Party Structure?

• A:  A party structure is any part of a building which divides it from other parts owned by someone else. Examples are the walls and floors between flats.

Q:  What if I want to excavate near a neighbours house/building?

• A:  If you want to excavate within 3m horizontally of their foundation and below the level of the bottom of their foundation you need to adhere to the Act and serve a notice under Section 6(1). If you want to excavate within 6m horizontally of their foundation and below the line cutting a 45 degree angle downward from the bottom of their foundation you need to adhere to the Act and serve a notice under Section 6(2). You can do this yourself or we can do this for you.

Q:  What if I only want to excavate near a neighbours separate structure, not their house/building?

• A:  The excavation clauses apply equally to excavations near neighbours houses/buildings and their other separate ‘structures’, requiring service of a notice under Section 6. You can do this yourself or we can do this for you. This can include masonry garden walls, garages, concrete bases, manholes, retaining walls, ponds and pools, raised flower beds, statues, memorials and gravestones etc. Definitions of ‘structures’ is not a hard and fast rule; it may be a matter of discretion and risk assessment – i.e. consider if it might be damaged by the works and if the adjoining owner is likely to object if no notice is served. Note this is any general ‘structure’, different from a ‘Party Structure’, see other questions above.

Q:  How do I know if I will excavate deeper than my neighbours foundations?

• A:  If you are building an extension the foundations will usually be a minimum of 1m deep. If you are building next to a pre-1950s building or a small/simple structure it is likely to have shallower foundations. More modern houses may have foundations at similar depths to what you are planning. If it is unclear how deep the neighbours foundations are you can ask them if you can dig a trial hole against the wall to expose and measure their depth. Bear in mind that your local authority building control officer may ask you to build deeper foundations once they inspect the foundation excavations, which could push you into complying with the Act where you didn’t need to at the design and planning stage. Sometimes it is safest to assume you need to serve an excavation notice under Section 6 anyway to avoid a delay later. You can do this yourself or we can do this for you.

Q:  Who are ‘Owners’ with rights under the Act?

• A:  An Owner under the Act is anyone with an interest in the property, on either side. This would be a freeholder or even a leaseholder or tenant provided their lease or tenancy is longer than 12 months. Some properties may have all three or more; in this case there may be multiple Awards to make on a single building. It could also include a buyer of the property if they have exchanged contracts. The Owner of the building where the work is happening is called the Building Owner; the neighbours are called the Adjoining Owners.

Q:  What is a Party Wall Award?

• A:  An Award is simply a legal agreement which binds the owners to certain undertakings; i.e. the Adjoining Owner to consent to the works and the Building Owner to make good any damage to the Adjoining Owner’s building and ensure their contractor sticks to certain rules agreed. The Award refers to the Schedule of Condition and drawings of the proposed works.

Q:  What is a Schedule of Condition?

• A:  A Schedule of Condition is a descriptive and photographic record of the Adjoining Owner’s property at a point in time before the work starts. It can be used later to confirm or reject any claim that damage or defect has arisen in the Adjoining Owner’s property as a result of the works.

Q:  Who can be the surveyor?

• A:  The surveyor can be anyone independent of the works and the parties. They can’t be a family member of any owner or anyone with something to lose or gain in the work; this would be a conflict of interest. Though the surveyor could legally be anyone off the street, it is best to use a competent experienced party wall surveyor as the process can quickly become a long expensive mess if not done properly. There will be issues that require expert understanding of technical building details. As above, you should consider your options and compare several surveyors before selecting one. Most reliable surveyors will give you some time on the telephone without charge to initially discuss your options and their service. Cheap fixed-price party wall surveyors tend to provide the minimum of service; you get what you pay for.

Q:  Can we have one surveyor?

• A:  The parties can have one surveyor each or agree to share a single surveyor, who is called the Agreed Surveyor. The Agreed Surveyor has a duty to act impartially for both parties; the Act and wall are his priority. An Adjoining Owner you may still feel that the surveyor would have a conflict of interest – particularly if they are involved in the work, such as the designer – there is no requirement to agree to appointment of an Agreed Surveyor. The Adjoining Owner can insist on their own separate surveyor. Note that if the Adjoining Owner was silent to the notice or refused to appoint a surveyor then an Agreed Surveyor cannot be used, a second separate surveyor can be appointed for them under the Act.

Q:  Who pays for the surveyors?

• A:  It is most common for the Building Owner doing the work to pay for the fees of both surveyors or the Agreed Surveyor. The surveyors will usually specify this in the Award (agreement) they make. If the Adjoining Owner were to demand various extra surveying, tests or monitoring which the surveyors thought was beyond reasonable needs they may apportion those fees to be paid by the Adjoining Owner.

Q:  How long does the Party Wall process usually take?

• A:  The Party Wall Award usually takes four to six weeks provided the Building Owner has all the drawings and details ready and the Adjoining Owner cooperates. Where there are two surveyors, the process is usually a little slower than with a single Agreed Surveyor. Sometimes it can take as long as three months if communication and paperwork is slow or there is some particular point of disagreement. In rare cases, where there are serious disagreements on technical and legal points, the party wall process can last six months or more. Note that there are statutory notice periods for the notices to run before works can take place. These are one month for Line of Junction (building a new wall on the boundary) and Excavation notices and two months for Party Structure (works to an existing wall) notices. These times can be shortened if an earlier date is expressly agreed to by the Adjoining Owner, but a Party Wall Award cannot shorten it otherwise. When an Award is served, there is a statutory 14 day appeal period, so it is best not to start work until that has also elapsed. The earlier you serve your initial notice, the better.

Q:  Why have I received a letter from a firm of surveyors saying I have to follow the Party Wall Act when next door have put in a planning application for work?

• A:  Some surveyors firms monitor local newspapers for new planning notices placed by council planning departments when a planning application is made; they write to all the neighbours in the hope that they will get some party wall surveyor work. Usually these letters are headed PARTY WALL ETC. ACT 1996 and some are strongly worded intimating you must appoint them to handle the situation. In reality you have the option to appoint any party wall surveyor you choose to be your Adjoining Owners Surveyor. If you are an Adjoining Owner it usually costs you nothing to have a surveyor to protect your interests, as the person doing the work normally pays all the fees. As with most unsolicited offers, you should consider your options and compare several surveyors before selecting one. Most reliable surveyors will give you some time on the telephone without charge to initially discuss your options and their service.

Q:  I get on well with my neighbour, do I have to follow the Party Wall Act process?

• A:  Adjoining Owners have the option to simply agree to the work with the Building Owner when they issue notice of it – BUT bear in mind this is an unconditional agreement to the work. This gives them and their building little or no protection if things go wrong. There is no experienced technical surveyor appointed to look over the proposals and seek out and highlight issues that may affect the neighbouring properties. In the event of damage to the building an Adjoining Owner may have to take the Building Owner to court and produce evidence that the damage is due to their work which could be long and costly. Similarly a Building Owner has nothing to use to defend themselves against a claim for damage that was actually already there. It is always best for both parties protection to have a formal party wall process undertaken by competent surveyors leading to a party wall Award with a schedule of condition.

Q:  I received a party wall notice from my neighbour who is doing work. I don’t really disagree with the work but I do want to protect my interests. Do I have to say I disagree / dispute / dissent to the work as that sounds too harsh and confrontational?

• A:  The standard template notices and response forms use the words ‘agree’ or ‘do not agree’, while some people also use the term ‘dissent’. The Act wording and the terminology surveyors use all call any reservation a ‘dispute’ if you are not agreeing unconditionally. In reality you may be receptive to the work but just protecting your interests; most Building Owners should understand this and all competent surveyors will also understand that may well be your point of view. You should not feel any awkwardness in completing the form with ‘do not agree’/’dissent’ and that you want a surveyor appointed; these are your rights. If you like you could include a less formal covering letter when you return the notice response to the Building Owner. By the way, note that the Act can’t be used to prevent the work happening (that’s down to the planning process) – so being receptive or not is really not the issue.

Q:  I don’t want the work to go ahead at all, can I use the Party Wall Act to stop it?

• A:  In the course of agreeing an Award there may be some negotiation between surveyors about sequence, methods, technical details etc. but the Party Wall Act cannot be used to prevent the work or object to the development completely – those are issues for Planning Authorities and the respective process. If planning permission is required and has already been granted, you cannot stop the works except by a planning appeal within the allowable periods. Some owners may seek to derail or delay the process; the Party Wall Act includes provisions for going to a Third Surveyor to determine a dispute and also for either surveyor to take over if one is unreasonable, unresponsive or ineffective. The Act is an enabling Act – its purpose is to allow work to go ahead within a legal framework, not to prevent it.

Q:  What if work has started without serving a Notice or finally agreeing a Party Wall Award?

• A:  If the Building Owner carries out the work without serving the Notice required and before an agreement to the works or an Award is made, they may face an injunction to stop work or perhaps be sued for damages. In most cases a reminder of this is enough to stop work until matters are properly organised. Building Owners who realise they have started without adhering to the process should stop work immediately and contact a party wall surveyor for help.

Q:  What if the surveyors can’t agree or are ineffective?

• A:  The Party Wall Act includes provisions for going to a Third Surveyor to determine a dispute between surveyors. This will unfortunately incur the Third Surveyor’s fee, but they will apportion it according to where they see the cost having arisen – it is common for that fee to be split. If one surveyor is unresponsive or ineffective, the Act allows for the other surveyor, after giving notice, to take over unilaterally. They then have to administer the award as if they are an Agreed Surveyor.

Q:  What if the contractor breaches the terms of the Award?

• A:  If the contractor is allowed to breach the terms of the Award, the Building Owner will have themselves breached the Award. They may face an injunction to stop work or perhaps be sued for damages. In most cases a reminder of this is enough to prompt the Building Owner to adhere to the terms of the Award.

Q:  What if I suddenly have a reason to want to get out of the Award after signature?

• A:  Parties to the Award have 14 days to appeal against it. However they have to go to court to do so and need good grounds for this to be successful. For this reason although Building Owners can start work as soon as an Award is signed, it is safest to wait until another 14 days have elapsed to make sure their work isn’t forced to be undone by an appeal.