The Act came into force on 1st July 1997 and applies throughout England and Wales. This legislation relates to preventing and resolving disputes between neighbours, only when certain construction work is carried out.
In the context of Party Wall Matters, you are the ‘Building Owner’ if you are doing the notifiable construction work. You are the ‘Adjoining Owner’ in simple terms, if you are the neighbour.
There are three types of Notice under the Act that can be served before a Building Owner can proceed with certain construction work.
This is when you are building a new wall on a boundary. You cannot serve this type of Notice if an existing wall is already on a boundary, unless it is a boundary wall (free standing garden wall). One month notice is required for serving a Line of Junction Notice.
This is most of the time when you are completing work to a Party Structure, for example increasing the height of a Party Wall, cutting into a Party Wall or, removing projections from a Party Wall. Other work covered under this type of Notice includes for example, a Building Owner knocking down a Party Fence Wall (a free standing garden wall astride the line of junction) and building a Party Wall (side wall forming part of an extension) in its place. Two months notice is required for serving a Party Structure Notice.
This is when you are excavating within 3m and to a depth lower than your neighbour’s foundations. There is also a 6m rule which normally comes into effect when piled foundations are proposed by the Building Owner. This is the only type of Notice requiring accompanying drawings which must show the proposed site of excavation and any proposed depth of excavation in cross section. One month notice is required for serving a Notice of Adjacent Excavation.
Common Examples Of Notifiable Work:
An Adjoining Owner can request Security for Expenses under Section 12(1) of the Act. Security is usually a sum of money held in a third party account covering damage that might affect the Adjoining Owner’s property or, if the Building Owner abandons their project. In our experience, Security for Expenses is normal for basement extensions.
Checking engineers are usually called upon by the adjoining owner’s Party Wall Surveyor on a Party Wall job that is not only complex, but also carries a considerable risk to the adjoining owner’s property. Checking engineers are usually called upon in jobs that include the following types of construction work.
If no response is made within 14 days of the notice being served the adjoining owner is deemed to have dissented and the parties are ‘in dispute’ under the Act. Where a dispute arises each owner must appoint a surveyor so that a party wall award can be agreed and served.
Once appointed, the two surveyors select a Third Surveyor who may be called upon to settle any issue that they cannot agree. Referrals to the Third Surveyor are rare. A party wall award is prepared which is a legally binding document that sets out who the parties are, includes details of the proposed work and what safeguards have been agreed to ensure that those works are undertaken with the minimum of risk and without causing unnecessary inconvenience to the adjoining occupiers.
These are some typical examples of issues that might be addressed in a party wall award:
The party wall award will also include a schedule of condition covering the parts of the adjoining owner’s property that are considered to be at risk from the works and copies of all relevant drawings and method statements. At the end of the works the surveyor acting for the adjoining owner will generally make a further visit to re-check the schedule of condition and hopefully confirm that no damage has been caused.
In all normal circumstances the building owner (the party undertaking the works) will be responsible for the fees of both their own and the adjoining owner’s surveyor. I say ‘in all normal circumstances’ because this is not specifically stated in the Act and is therefore more of a ‘rule of thumb’ applied by party wall surveyors. The surveyor acting for the adjoining owner keeps a record of their time and when all other matters have been resolved puts their fee forward to the building owner’s surveyor for agreement. If the two surveyors fail to agree upon what constitutes a reasonable fee they can refer the matter to the Third Surveyor who will have the final say.
The Act allows for the same surveyor to be appointed by both the building owner and the adjoining owner (known as the ‘agreed surveyor as referred to above’) but often adjoining owners will prefer to appoint a surveyor that they have chosen.