What is the Party Wall etc Act 1996?

This is one of those areas of law of immense importance to those affected by it, but sadly neglected by those who pretend to understand it. It is crucially important that expert knowledge is relied upon at all times. To get it wrong can unfortunately result in some very serious financial and other consequences.

The Act creates a regime enabling property owners to undertake certain works that previously required the consent of the adjoining owner, without which it was impossible to do the work. The Act entitles an owner to interfere with the proprietary rights of another owner without fear of any legal liability, provided that the provisions of the Act are followed.

The Act, therefore, can provide an efficient procedure enabling works that will affect neighbouring owners to be put in hand promptly, and on a fair and reasonable basis. The process should result in what is referred to as an Award that legalises the activities in question and avoids any actions in trespass or nuisance.

What work is covered by the act?

Though the Act says "Party Walls", it also says rather curiously "Etc." This is because the Act covers not just Party Walls.

The Act places a statutory obligation upon the building owner to serve a notice of intended works:-

"on the line of the junction." or -

"to the party structure" or -

"for excavations which extend below the foundations of the neighbouring owner’s structure that are within 3m or 6m of the proposed works"

it is therefore clear that the "Etc" in the title of the Act cover works that fall beyond the definition of "Party Wall" and includes these the wider terms above. 

What notices need to be served?

Section 3(1) of the Act states that, before exercising any right conferred upon him by Section 2, a Building Owner needs to serve on any Adjoining Owner a Notice referred to as a:

"PARTY STRUCTURE NOTICE"

This must state:

The name and address of the Building Owner; the nature and particulars of the proposed work (which will depend upon the nature of the work) and the date upon which it is intended the work shall commence.

This Notice must be clear and intelligible and expressed in such words that make it easy for the adjoining owner to understand what is happening.

The Notice shall be served at least two months before the date upon which works are scheduled to commence. But, in addition, the Notice shall cease to be effective if the work has not commenced within a period of twelve months beginning on the date of service of the notice and is not prosecuted with due diligence.

Section 4 of the Act addresses the action to be taken in response by the Adjoining Owner. This is referred to in the Act as a

"COUNTER NOTICE"

Having been served with a Party Structure Notice, an Adjoining Owner MAY serve the Notice referred to. This sets out which building work can be allowed, subject to what conditions. It may also, in respect of special foundations, state what the nature of those foundations must be. In other words, it sets perimeters in terms of the nature of permitted/agreed works.

The Adjoining Owner may therefore specify works that they consider are reasonably required to maintain the structure of integrity of the party structure and/or party fence wall.

RESPONSE TO COUNTER NOTICE

A Building Owner upon whom a Counter Notice has been served shall (not may) comply with the terms of the Counter Notice unless the execution of the works required by such Counter Notice would be injurious to him; cause unnecessary inconvenience to him or cause unnecessary delay in the execution of the works in question.

As with many legal situations, it is a matter of reasonableness and degree. There is much room for interpretation. Great care needs to be taken. There are many rules which need to be followed strictly.

What is there is a failure to serve a notice?

If an Owner served with a Party Structure Notice or a Counter Notice fails to consent to it within a period of 14 days from service, he will be assumed to have dissented, and a dispute shall be deemed to have arisen. There then follows a designated procedure under the Act.

Where a dispute arises (including where it is deemed to have arisen) both parties shall agree to the appointment of a single surveyor (“the Agreed Surveyor”) or each party shall appoint a surveyor of their own choosing and the two surveyors appointed shall select a third surveyor.

All the surveyors have a duty of care to both parties and should not be perceived as acting on behalf of one to the detriment of the other. Like experts in Court who are, in effect, officers of the Court, so the surveyors have a duty to ensure fairness as between the parties. They must be strictly impartial.

If the Adjoining Owner fails to appoint a surveyor, the Building Owner’s surveyor cannot appoint himself as the Agreed Surveyor. However, following dissent to a Notice, the two Appointed Surveyors must “forthwith” select a Third Surveyor, the Agreed Surveyor. All appointments must be in writing. The duty of the surveyors is to resolve disputes impartially, whenever possible. The appointment of a surveyor is personal to him, and not to the firm where he is employed. The appointment in every case cannot be rescinded which prevents the owner from dismissing their surveyor.

If either party to the dispute refuses to appoint a surveyor under subsection (1)(b) or neglects to appoint a surveyor under (1)(b) for a period of ten days beginning with the day upon which the other party serves a request on him, the other party may make the appointment on his behalf.

What is a Party Wall Award?

Section 10 of the Act provides that the Agreed Surveyor or, as the case may be, the three surveyors, or any two of them, shall settle by award any matter connected with any of the works to which the Act relates and which is in dispute between the building owner and the Adjoining Owner.

An Award may well determine the right to execute work; the time and manner of doing so and any other matter arising out of, or in connection with, the dispute including the costs of making the Award.