THE PARTY WALL etc. ACT 1996
Prior to 1996 party wall legislation had various forms but there was not a coherent legal framework. This position was resolved by the Party Wall etc. Act 1996 which came into force in 1997 and extended the legislation to the whole of England and Wales. The Act provides a framework for ‘building owners’ to carry out works to their properties and shared walls whilst protecting the rights of ‘adjoining owners’. The Act is triggered in 3 situations:
Works to a shared structure. This shared structure can be either a wall separating two properties or a floor separating two flats: these are called ‘party structures’ or generally ‘party walls’. Such works may include inserting steel beams into a party wall; raising a party wall for a loft conversion or an extension; removing a loadbearing wall and inserting a new beam into the floor above; removing a chimney breast from a party wall; underpinning a party wall for the excavation of a basement; cutting into a party wall for various purposes such as inserting a damp proof course or simply making good and repairing a party structure.
Building across the boundary between two properties. The exact position of a boundary is not always clear. The Act provides the building owner and the adjoining owner the opportunity to agree on its location and provides certain rights and obligations to both owners for the works on the boundary between their properties. Some of the most common examples of such work include building a new wall with a new foundation on the boundary; inserting a flashing or other weatherproofing into the existing wall of an adjoining owner or cutting away parts of the building of an adjoining owner which overhang across the boundary.
The word ‘etc’ in the Act literally means ‘and the rest’ and it refers to the other works that may be carried that do not directly affect the party wall but which may have the potential to it, such as excavations in close proximity to party walls. Such excavations have the potential to undermine the party wall foundations and have to be considered as part of the Act.
If the type of works set out above are planned, then the adjoining owner needs to be formally notified by the building owner ahead of the works commencing. The periods set out in the Act are 1 month for excavations and 2 months for works carried out to a party structure.
PARTY WALL NOTICE
A ‘party wall notice’ gives the adjoining owner 3 options:
To Consent to the works. In this option the works can proceed straight away. Some adjoining owners adopt this option but request the preparation of a ‘Schedule of Condition’ of the adjoining owner’s side of the party wall. This document can be consulted during the works to confirm whether defects are pre-existent or have developed during the works.
To Dissent from the works and agree to the appointment of the same party wall surveyor to impartially represent both owners. This is known as the Agreed Surveyor. The Agreed Surveyor represents both sides of the party wall in an impartial manner because the ultimate client is the party wall itself and not the owner who pays his fees. It is important that both owners understand this so they both can feel comfortable agreeing the appointment of the same surveyor. In this option the Agreed Surveyor prepares a Schedule of Condition of the adjoining property as well as the party wall award, setting out the rights and obligations of each owner.
To Dissent from the works and appoint their own party wall surveyor. In this option the two surveyors liaise with each other and prepare a Schedule of Condition as well as a party wall award as in option 2. The reasonable fees of that second surveyor are met by the building owner.
Other information included in the party wall notice is the length of time the adjoining owner has to decide upon one of the three options above. The Act gives the adjoining owner fourteen days to decide on whether to consent or to dissent from the proposed works. If, after fourteen days, the adjoining owner does not respond to the notice, then that lack of response is considered an automatic Dissent and the adjoining owner is then left with options 2 and 3 and has an additional ten days to decide upon one of those two options. If after those additional ten days the adjoining owner still does not respond to the notice, then at that point the owner carrying out the works has the legal right to appoint a party wall surveyor to represent the adjoining owner. That process is irreversible. This is off course an extreme situation; most adjoining owners respond within the initial fourteen days; unless they are absent and reside abroad.
PARTY WALL AWARD
The party wall Award sets out the conditions for carrying out the proposed building work. The Award covers only the work which is notifiable under the Act and does not cover any other work being carried out elsewhere in the building. It covers also the hours that noisy works are allowed to be carried out although some general disruption is unavoidable.
Fourteen days after the signed Award is delivered on both owners, the works can then proceed. This fourteen day period gives either owner the opportunity to appeal against the Award in the County Court if they feel the Award is unfair. During these fourteen days, other building works can proceed and the hours of noisy works are regulated by the local authority but are generally Monday to Friday 8am to 6pm and Saturdays 8am to 1pm. Noisy work is generally prohibited on Sundays and bank holidays.
As structural engineers we are ideally placed to act as party wall surveyors and represent building owners and adjoining owners when notifiable building work is undertaken. Most of our clients instruct us to carry out the engineering design as well as acting as party wall surveyors. The benefits for the project are considerable as this approach strikes a sensible balance between economy and unnecessary use of resources. Contact us to discuss your situation or your planned works.