The Party Wall etc. Act 1996, which will be referred to as “the Party Wall Act” throughout this article, holds significant implications for homeowners, developers, and conveyancers. As a party wall surveyor, I often receive queries about the act and how it interacts with conveyancing activities. So, this article will delve into the critical aspects of the act and how it crosses over with the responsibilities of conveyancers.
Understanding the Party Wall Act
The Party Wall Act is a UK law that offers a structure for avoiding and resolving disputes related to party walls, boundary walls, and excavations close to adjacent structures. To fully grasp the legislation, it’s essential to know what a party wall is.
A “party wall” refers to a wall located on land owned by two or more people and constitutes a part of a building. A typical example of a party wall could be the wall dividing a semi-detached house, or the floor between flats.
Although a property deed may refer to a “party wall fence”, standard garden fences do not fall under the Party Wall Act.
The Party Wall Act empowers property owners to execute certain works while also offering assurance and comfort to the neighbouring owners. When applied properly, everyone is better off. The works generally encompassed by the Party Wall Act include:
- Construction or modification of a party wall or structure.
- Excavation within three to six metres of a neighbouring building or structure, depending on the depth of the new foundations.
The Party Wall Act & conveyancers
As a conveyancer, having knowledge and understanding of the Party Wall Act will be handy for many reasons and will prove invaluable if anything associated with a party wall emerges during a project.
I have gone into detail below on some of the ways in which the party wall act intersects with the routine responsibilities of a conveyancer or property lawyer.
1. During Property Deals
In a property deal, the conveyancer will need to determine if the Party Wall Act is applicable or relevant and, if a buyer plans to carry out work under the Party Wall Act, they should be made aware of their responsibilities. Consulting a party wall expert may help avoid future legal complications and/or anxiety, and minimise the risk of disputes with new neighbours.
If on the other hand a neighbour has already carried out party wall related works, a buyer will need guarantees that these complied with the Party Wall Act. This is to ensure that they don’t bear liability for any future damage resulting from the previous work.
2. Dispute Settlement
The Party Wall Act also offers a procedure for dispute resolution that property lawyers and conveyancers might need to navigate should any issues related to party wall works arise.
If a party wall notice has been issued and consent isn’t granted within a stipulated time frame, then a dispute is presumed to have arisen. In such cases, surveyors will be appointed to solve the dispute, a process that can be intricate and sometimes require legal intervention and assistance.
Familiarity with the act in these circumstances will simplify interactions with the involved parties and any appointed surveyors. Although as a conveyancer you would not be responsible for the dispute resolution, knowing how to navigate such a matter would be of use to your client.
3. Maintaining Compliance
At times, a conveyancer may also shoulder the responsibility of ensuring adherence to the Party Wall Act. Not all clients know that the act even exists, and may need to be guided on where their responsibilities begin and end.
For example, if a client plans to conduct work under the scope of the Act, it’s crucial to verify the correct notice has been issued and a party wall award, if needed, has been agreed upon.
If a client were to fall outside of the Party Wall Act this could lead to heightened legal risks and/or potential costs should any damage to the party wall occur.
The perils of not complying with the Party Wall Act
Neglecting to follow the Party Wall Act when executing works outlined by the act can pose several risks including:
- Legal Conflicts – Perhaps the biggest risk from non-compliance is the increased likelihood of legal disagreements, potentially leading to court proceedings which can be costly and time-consuming.
- Financial Implications – If any work causes harm or damage to the neighbouring property and the building owner has not complied with the act, they could be held accountable for the repairs.
- Construction Delays – If the building owner initiates works without issuing the required notices or acquiring consent from the adjoining owner, the latter may seek to halt the works via a court injunction. This could result in significant delays and increased costs.
- Potential Sale Loss – Prospective buyers (and their solicitors/conveyancers) will want to confirm that any previous works were executed in compliance with the Party Wall Act. Non-compliance could influence the property’s worth or even result in a sale loss.
A lack of knowledge of the Party Wall Act is not an acceptable justification for non-compliance, so it’s essential to educate building owners about their responsibilities before commencing any works.
The function of Party Wall Surveyors
Party wall surveyors play a pivotal role in enforcing and complying with the Party Wall Act, and conveyancers will often collaborate with an agreed party wall surveyor to ensure that a property changes hands smoothly and with minimal risks.
Put succinctly, party wall surveyors are involved in preparing and issuing notices, agreeing upon party wall awards, and settling any disputes that might emerge during or post the construction works.
In essence, the party wall surveyor’s function is to ensure the proper implementation of the Party Wall Act, safeguarding the interests of both the building and adjoining owners.
Party wall surveyors can be appointed by the building owner (the individual carrying out the work), the adjoining owner (the person affected by the work), or they can be an agreed surveyor representing both parties.
It is crucial to understand that party wall surveyors must act impartially, irrespective of their appointee. The property owner who hires the surveyor isn’t necessarily guaranteed a favourable outcome.
While property owners and developers can issue a party wall notice themselves, they can’t act as their own party wall surveyor.
However, the Party Wall Act doesn’t specify the acting surveyor to be an experienced or trained professional. So theoretically, anyone besides the property owners can serve as a party wall surveyor.
Naturally, appointing a surveyor with an extensive knowledge of the Act and experience in handling party wall matters often results in less hassle and a more streamlined building project.
Conclusion
It is essential that any residential property lawyer or conveyancer understands the Party Wall Act. While primarily within the scope of surveyors, the Party Wall Act bears significant implications for property transactions and dispute resolutions, and compliance is of utmost importance.
By understanding the act and collaborating closely with seasoned surveyors, conveyancers can help their clients navigate this complex legal area confidently, minimising the risks associated with any party wall-related work.
Written by Bradley Mackenzie – RICS Accredited Mediator.
2 Responses
The 1996 Act doesn’t act as a structure for avoiding disputes. Without the Act there could be no ‘disputes’. The Act only acts to allow someone to carry out work on a party wall wall that might not be possible under common law.
The Party all Act is only applicable if the person doing the work decides that he needs to exercise the additional rights the Party Wall Act can provide. No rational individual will want to initiate the Act if his common law rights suffice.
If building work causes damage, the person who carried out the work will be liable irrespective if the Party Wall Act.
The Party Wall Act is only applicable if the potential building owner decides he wants to exercise rights under the Act. If no additional rights are required, the common law situation continues.
You say “a lack of knowledge of the Party Wall Act is not an acceptable justification for non-compliance, so it’s essential to educate building owners about their responsibilities before commencing any works”. Sadly you need to educate yourselves. Your article is complete nonsense,
The ‘building owner’ is not ‘the individual carrying out the work’. The Building Owner is an individual who wishes to take advantage of the additional tights the Party Wall Act can offer.
If the person carrying out the works is not desirous of exercising rights under the Act, he is not a ‘building owner’, he does not (cannot) serve a Notice, and the common law rights that existed before 1st July 1997 continue to apply.
Please study the three judgements in Shah v Kyson and Power, and stop writing nonsensical self-serving twaddle.
Perhaps its worth mentioning that if the adjoining owner(s) agree to the notifable works, there is no Dispute and no Party Wall Surveyor involvement. In addition, Party Wall awards cannot be imposed on building owners by adjoining owners.