The simplest
type of boundary wall is the Fence Wall.For over a century the City of London and 12 Inner London boroughs enjoyed a unique and unusual legal regime governing party walls and related matters. That regime is now extended to the whole of England and Wales by the Party Wall Etc Act 1996. The changes are dramatic but have received relatively little attention.
At the heart of the Act is the concept that land owners are granted extensive rights over the walls that separate them from their neighbours. These rights are granted without much regard to legal ownership. For example, someone wishing to add an extra storey to his terraced house may have the right to demolish a wall of his neighbour's house, rebuild it more strongly and then build upwards off it. He can if necessary make a forcible entry to his neighbour's property to do this. The quid pro quo is that before he can exercise those rights he has to initiate (and finance) an elaborate procedural mechanism designed to secure that the long term interests of both neighbours are properly safeguarded. That mechanism depends on a system of compulsory statutory arbitration from which the courts are largely excluded.
The Act also deals with the separate topic of excavations on the land of one owner which may affect neighbouring buildings.
Like its predecessors, the 1996 Act governs a number of different types of structure. The terminology used in the Act is extremely confusing and lacks any coherent scheme of classification. I find it helpful to divide the various types of wall into two main categories: boundary walls and party structures. Most of the provisions of the Act relate to party structures.
The simplest
type of boundary wall is the Fence Wall.
It has these characteristics:
Note that throughout the Act foundations are ignored when deciding whether the wall straddles the boundary. So the wall in the illustration is treated as a fence wall entirely on the blue land even though the foundations are partly on the pink land.
Note also that when the Act refers to a 'wall' it means something more permanent and substantial than, say, a wooden fence.
A Party
Fence Wall is the same as a fence wall except that it
straddles the boundary above ground level (as always, foundations
are disregarded). The obvious example is a wall between
two adjoining back gardens.
Note that the wall does not have to be central on the boundary. In the illustration the wall is mostly on the blue land. It is the fact that it encroaches slightly onto the pink land that makes it a party fence wall.
If the boundary has not previously been built on then a land owner can only construct a party fence wall with his neighbour's permission: see section 1 of the Act. If the neighbour does not consent then the landowner can only build a fence wall or an 'External Wall'.
An External Wall
(or in some parts of the Act an External Wall of a
Building) is a wall which is wholly on one side of the
boundary (as always, foundations are disregarded) but which does
form part of a building.
If the boundary was previously unbuilt, a landowner can build an external wall without his neighbour's consent. In other words he is allowed to build right up to the boundary, as one would expect. However, he also has the right to place the foundations of the new wall partly on his neighbour's land as shown in the illustration: see section 1(6) of the Act.
Most
of the 1996 Act is concerned with 'Party Structures'. This term
in fact comprises three different types of structure but the
terminology of the Act does not make it very clear. The
expression 'Party Structure' is defined in section 20 of the Act
as either a 'Party Wall' or a floor, partition etc. separating
buildings. The term Party Wall means either:
It is convenient to refer to the two types of Party Wall as type (a) and type (b). A Party Wall, type (a) is the same as a Party Fence Wall except that it forms part of a building.
A
Party Wall, type (b) is rather different. Such a wall will (by
definition) be entirely on one side of the boundary. It is
therefore the exclusive property of one neighbour. A major change
brought about by the Act is that the adjoining non-owner of the
wall is now granted rights over it.
Note that in the illustration, only the coloured section of the wall counts as a Party Wall. That is because the definition in section 20 makes it clear that it is only 'so much of a wall' as separates two buildings that is to be treated as a Party Wall, type (b).
There is a third type of Party Structure which is not a party wall of either type (a) or type (b). The illustration shows a building divided into three flats. Each flat is approached by a separate staircase. The internal wall between the two upper flats is a party wall. So is the floor/ceiling separating the upper flats from the lower one. This assumes that the flats are separately owned (presumably on long leases). If they were merely let on weekly tenancies by a common owner there would be no party structures.
Throughout the Act the term 'building owner' is used to refer to a person wishing to exercise rights under the Act. The other party is referred to as the 'adjoining owner'. Section 2 of the 1996 Acts confers extensive rights on the building owner. For example he has:
One useful reform brought about by the 1996 Act concerns the situation where a building is demolished so as to expose to the elements a party wall which had previously been enclosed. Section 2(2)(n) now lists this as one of the rights governed by the Act but requires that adequate weathering must be provided. (This reverses the effect of Phipps v Pears [1965] 1 QB 76 CA).
In support of these rights a building owner is given a right of entry into the adjoining owner's premises, subject to various safeguards.
Before any of the rights can be exercised the building owner must give two month's written notice in accordance with section 3 of the Act. The sting in the tail comes from the fact that unless the adjoining owner consents in writing within two weeks, a dispute is deemed (by section 5) to have arisen between the parties. A prudent neighbour will not give his consent, however well intentioned he is. He has nothing to lose and everything to gain by the existence of this technical dispute. In effect the building owner is now required to pay for his neighbour to be advised and represented by a surveyor of the neighbour's choosing.
Section 10 of the Act provides that where a dispute arises (which is in almost every case) surveyors must be appointed to resolve it. One possibility is for both parties to agree in the appointment of a single surveyor. The adjoining owner is usually reluctant to agree to that proposal, so the alternative procedure is more common. Each owner appoints his own surveyor and the two surveyors then select a third surveyor to act as umpire in case of deadlock. The third surveyor is merely 'selected' at this stage. He does not take any part in the proceedings initially and need not even be informed. Incidentally the 'surveyor' can be of any profession or none, although Chartered Building Surveyors and Architects most often act.
The remainder of section 10 sets out procedural rules governing such matters as failure or refusal to act, and requires the surveyors to settle by an award any matters in dispute. This regime closely follows the traditional pattern of commercial arbitration. Indeed, although the word 'arbitration' is not used, the Act appears to create a compulsory statutory arbitration regime. However, it is not clear that the Arbitration Act 1996 applies to such an 'arbitration'.
Invariably the building owner will have instructed a surveyor to advise him on party wall matters before the service of the notice and invariably that surveyor will be the one he appoints under section 10. Nevertheless it is important for all parties to have clearly in mind that while the surveyors are acting pursuant to their appointment under section 10, they have a duty to act fairly and impartially as between the two owners. They are now in the position of arbitrators.
The normal procedure is for both surveyors to take a schedule of condition before the work starts. They then attempt to agree an award settling the details of the building work to be done in so far as it affects the adjoining owner. In the event of disagreement the third surveyor can be brought in. Section 10 provides that a valid award can be made by any two of the three surveyors. Finally, when the relevant work has been properly completed, the surveyors re-inspect by reference to the schedule of condition and ensure that any damage is corrected.
Section 10(13) provides that the costs of the award, e.g. the surveyors' fees, are to be paid by such of the parties as the award determines. Invariably the award determines that the building owner is to pay the entire cost. The surveyors also decide who pays the expenses of the work itself. Normally the work is for the sole benefit of the building owner so he pays. However, it often happens that one owner builds or strengthens a party wall for his own benefit but later the neighbour wishes to make use of it himself. At that point the builder of the wall can recover a contribution towards the cost at current prices.
It should be noted that the London Building Acts, and now the 1996 Act, also govern excavations close to a boundary. In order to guard against damage to adjoining buildings by undermining, a building owner must serve notice before carrying out certain types of excavation.
Excavations are governed by section 6 of the 1996 Act. The section applies to two separate situations. The first situation is where the building owner proposes to excavate within 3 metres (previously 10 feet) of a structure belonging to an adjoining owner. If the building owner's excavation will extend to a lower level than the bottom of the foundations of the neighbour's building, he must serve a notice. Under the London Building Acts this notice was generally referred to as a 'ten foot notice'. Presumably it will now be known as a 'three metre notice'. However these terms do not appear in the Acts.
The second situation is where the excavation is carried out more than 3 metres from any structure of an adjoining owner but within 6 metres of such a structure. To determine whether a notice must be served, a notional line is drawn starting at the bottom of the foundations of the neighbour's building. The line slopes down at an angle of 45 degrees. If the building owner's excavation extends below this line then a notice must be served. This notice can be referred to as a 'six metre notice' (previously a 'twenty foot notice').
A three metre or six metre notice must be served at least one month before the building owner starts to excavate: see section 6(5). The notice must give proposals for underpinning etc. and must be accompanied by plan and section drawings: see section 6(6). As with party wall notices, a dispute is deemed to arise if the adjoining owner does not consent to the work within 14 days. The dispute is resolved in the same way.
Experience in Inner London has shown that party wall matters must be properly dealt with at an early stage. The courts will readily grant an injunction to restrain building work carried out in disregard of the party wall procedures. The work governed by the Act (for example foundations) is often critical to completion of the project as a whole and enormous delay and expense can result from not observing the rules.
On the other hand, the 1996 Act confers wide ranging rights which make it very difficult for an adjoining owner simply to hold a developer to ransom. Provided the rules are followed, the developer can in effect compulsorily purchase the use of the walls along the boundaries of his site.
David Marshall, January 1999
This page was last updated on 13th April 1999. Copyright © A David Marshall 1999.