The Party Wall etc. Act comes into play when a ‘building owner’, as defined by the Act intends to carry out works to a party structure, which may be a wall, but can also be a floor. The Act also applies if excavation works are planned within certain distances of the ‘adjoining owners’ property, even if they are wholly within the building owners site.
The Act defines the parties as either Building Owners or Adjoining Owners. Elevation Surveyors can accept appointments on behalf of either, or a joint appointment as ‘agreed surveyor’. It is against the law to carry out such works, without first serving notice on all neighbouring parties, deemed to be ‘owners’ under the Act. There are also specific procedures for the serving of the appropriate notices and the appointment of surveyors should a dispute arise.
The first step to take is to determine whether your proposals fall under the Act. We would be pleased to offer preliminary guidance on this matter. If indeed they do, then the Building Owner should appoint a surveyor to serve the relevant notices. Since these have statutory time periods attached, it is advisable to complete the party wall issues well before the intended start date.
The party wall surveyor is not appointed on a normal client/consultant basis. It is a quasi-judicial appointment, and thus the building owner is termed ‘appointing owner’. The surveyor is bound to Act impartially to both building and adjoining owner. As such the building owners surveyor can also be appointed by the adjoining owner, and thus becomes the ‘Agreed Surveyor’. The adjoining owner may however choose to appoint there own surveyor, and in such a scenario, the building owner is normally responsible for their fees.
There can be situations where there are multiple adjoining owners, as leaseholders with an interest of over 12 months are also counted as owners. Even with an adjoining house, split into two flats, there could potentially be three adjoining owners; two leaseholders and the freeholder. The building owner could thus become liable for four sets of surveyor’s fees.
If no response is made within 14 days, the Act states that there is automatic dissention, and a dispute has arisen. These terms can be misleading, as the word dispute is quite strong, and should not imply that the adjoining owner is confrontational, or trying to stop the building owner from carrying out his or her intentions.
Dissent does however trigger the preparation of an Award, as compiled and agreed by the appointed surveyor(s). It will detail the scope of the works and what provisions have been agreed to safeguard that the works are carried out without undue detriment to the adjoining owner, and most importantly that the building owner is responsible for any damage caused as a consequence.
The adjoining owner should be aware that they cannot prevent the works from being carried out, unless the building owner wishes to build a new wall ‘astride’ the line of junction, where none exists, in which case written consent is required.
Whilst consenting to the works does not forfeit the adjoining owners rights, it is in their interest to dissent, so that an Award is agreed.
