Party Wall Etc Research Articles

Can a party wall surveyor determine the location of a boundary under the Party Wall etc. Act 1996?

The Party Wall etc. Act 1996 is an important piece of legislation which adjudicates in the midst of what are often the competing needs of neighbouring parties. Party wall surveyors are charged with the role of facilitating the exercise of the building owner’s rights while simultaneously safeguarding the interests of the adjoining owner. The Act confers upon the party wall surveyor the power and jurisdiction to properly discharge this role and laid out within the Act are a set of rules and directions that guide the surveyor as to the execution of that role. Nowhere within the four corners of the Act, however, is the party wall surveyor guided as to how to address the discharging of their role in the throes of a dispute between the parties as to the location of the boundary that separates their properties. The difficulty that arises is that much of the Act is predicated upon the location of the boundary being of settled knowledge or agreement. Indeed, knowledge of where the boundary lies goes in many instances to the heart of the operation of the Act. In his roles as third surveyor, the author is often met with referrals from appointed surveyors with differing views as to how to address a party wall matter in an instance in which there is disagreement between the parties as to the location of the boundary. This paper examines the arguments often put by surveyors in such circumstances, examines the extent of the surveyor’s powers in this regard under the Act, considers industry and judicial treatment of the matter, and sets out what is in the author’s view the conclusive position.

How case law has changed the way we administer the Party Wall etc. Act 1996

If the Party Wall Act has not been amended significantly since 1996, what has changed? This paper helps to explore some of those changes, what is making the changes and why surveyors are perplexed by the wording of the Act. It examines new construction techniques that do not fit clearly with our understanding of the legislation and points to where to find some guidance. There are plenty of recent cases referenced and the author’s view of what can be drawn from case law to help our understanding of the Act is expressed in terms of how matters should be handled by surveyors.

Schedules of condition and final inspections : Are they required under the Party Wall etc. Act 1996?

This paper is an exploratory study into whether schedules of condition and final inspections are required under the Party Wall etc. Act 1996 (‘the Act’). It is common practice among party wall surveyors to gain access to adjoining owners’ properties to prepare a schedule of condition before the notified works commence and inspect upon the completion of the awarded works. There would, however, appear to be a tension between the statute itself and common practice, because the terms ‘schedule of condition’ and ‘final inspection’ are not included in the Act. It is the absence of these terms which has dictated the exploratory nature of this paper, drawing on various sources, including parliamentary debates at the time the Act was in the form of a Private Member’s Bill, the writing of an eminent surveyor who was chairman of the working party advising the legislators, and practising surveyors and lawyers. Consideration is given to the extent to which assumptions expressed in Parliament may have failed to find their way into the Act. My exploration is consideration of any distinction between statutory duty, professional duty, good practice and proportionality; a corollary to the duties and conduct of appointed surveyors is the problem of delegation in their quasi-judicial role.

Getting to grips with the difficult issue of security for expenses under the Party Wall etc. Act 1996

The topic of security for expenses is a matter that the author is increasingly having to address under referral as third surveyor. This paper briefly examines the roots of the security for expenses provision, noting how the provision has evolved since first introduction within the Metropolitan Building Act 1855 where the provision was less commonly applied; then making its way through the various Acts with subtle but meaningful changes that have resulted in much more common and (in the author’s view) over-use of the provision within the current Party Wall etc. Act 1996 (the Act). The paper highlights the lack of parliamentary guidance provided to support the use of the provision, which the paper suggests will have flowed from the limited parliamentary time that was allowed back in 1996 for the hearing of the Bill, which, in the event, caused the Bill to be rushed through Parliament with some rough edges, to say the least. The paper finds that added to the lack of legislative guidance within the current Act is a gulf that is yet to be filled by the usual (but in this case lacking) onslaught of case law that tends to address the unanswered questions posed by parliamentary legislation. The article casts light upon some of the more contentious aspects of the provisions, unpacking those aspects and providing some practical ‘how to’ guidance to practitioners who have to deal with the matter on a regular basis.

The role of surveyors under the Party Wall etc. Act 1996

The Party Wall etc. Act 1996 (the Act) is a unique piece of legislation, as it applies a dispute resolution process for works affecting neighbouring owners that is administered by surveyors and not by the courts or through formal arbitration procedures. This gives surveyors appointed under the Act a statutory role and it is therefore important that surveyors properly understand the extent of that role, the responsibilities that come with it and the limits of their jurisdiction. This paper examines case law to explain key issues of the surveyor’s role in detail. Much of that case law is from the County Court, which means that it is not binding on other courts, but as many of those judgments make reference to decisions of higher courts, they give valuable guidance to surveyors about how the courts understand the surveyor’s role. Many of the decisions result from courts deciding that actions of a surveyor were incorrect, which shows the importance of not taking for granted that the regular practice of other surveyors is necessarily correct. This article focuses on the role of surveyors when each owner appoints their own surveyor. Many of the points will of course also apply to agreed surveyors.

Party walls: When it goes wrong for surveyors and how they can deal with awkward situations

This paper is designed to assist surveyors in handling awkward party wall matters and understanding the limits of their own knowledge — the key message is: ‘Know what you know, know what you don’t know.’ Some of the complexities of recent case law are explained and it is the author’s suggestion that the administration of the Party Wall Etc. Act 1996 (the Act) is becoming far more complex and surveyors need to keep up to date with case decisions in all courts. Changes to the legislation itself are limited; however, case law is driving changes in the way the Act is interpreted and administered. This paper does demonstrate some of the recent cases and the decisions of judges that have had a more significant recent impact on the administration of the Act by surveyors; it also highlights the increasing complexity of judgments and findings within the courts. The need to keep abreast of these decisions is making the party wall surveyors’ role increasingly more complex. A good party wall surveyor will most likely be dedicated to this service exclusively and will have time to allocate to keep abreast of the case law. Members of the public would be well advised to seek these individuals when instructing.

Last man standing: Potential absurdities in the Party Wall etc. Act 1996

This paper analyses the potential absurdities in the Party Wall etc. Act 1996 arising out of a recent party wall case, along with the practical implications for practising party wall surveyors. The Party Wall etc. Act 1996 came into force on 1st July, 1997 and is law in England and Wales. The Act provides a statutory mechanism for resolving disputes where the implementation of ‘notifiable’ works by one property owner (the building owner) has an impact on an adjoining property owner (the adjoining owner). Notifiable works generally comprise adjacent foundation excavations, works to repair, rebuild or modify a shared ‘party’ wall and the construction of walls at, or astride, the ‘line of junction’, being the legal boundary between the lands of two or more owners. In the event a ‘dispute’ arises between the respective property owners over the notifiable works, the Act requires both parties to appoint their own party wall surveyor, whereby the two surveyors then select a third surveyor to adjudicate any dispute they may have. Alternatively, the parties may elect to jointly appoint a single ‘agreed surveyor’ as a neutral arbiter. The agreed surveyor or the three surveyors, as the case may be, then resolve the dispute by way of an ‘award’ which is legally binding unless rendered invalid through procedural defect or where successfully appealed by either party in the county court within 14 days of service.

Security for adjoining owners under s.12(1) of the Party Wall etc Act: What is it really all about?

It is becoming increasingly more common for adjoining owners to require security in accordance with section 12(1) of the Party Wall etc. Act 1996, yet its application is often misunderstood. What should be a relatively straightforward process is frequently misused by owners and surveyors. This paper is intended to guide surveyors through the entire process, identifying what security is, when it should be required, how it should be administered, what it can include, the form it can take, how it should be released and illustrating the complexities often encountered.

Going to the third surveyor under Section 10 of the Party Wall etc. Act 1996

The aim of this paper is to convince surveyors practising in matters under the Party Wall etc. Act 1996 (the Act) that going to the third surveyor to resolve a dispute is not a failure — in fact, the opposite is true. The paper aims to give a steer on how referrals can and should be made, as well as providing examples of how to make them, when and for what reason. There is a great deal of confusion within the profession generally as to the role of the third surveyor, and the paper aims to throw light on the subject in a readable way which can be referred to again and again — becoming timeless as a reference document. The intention is to provide the reader with a greater knowledge of the principles behind a referral to a third surveyor and the required skills to do so.

Uncertainty on the Line of Junction

The esoteric term ‘Line of Junction’, in Section 1 of the Party Wall etc. Act 1996 (‘the Act’) has been the subject of much debate between party wall surveyors and lawyers.1 The first half of this paper considers two topics in the context of a building owner proposing to construct a wall entirely on his/her own land: first, the use of the phrase ‘Line of Junction’; and second, what qualifies as building on the Line of Junction? Building a wall entirely on the land of the building owner, albeit up to the Line of Junction, would appear less problematic than constructing a new wall astride the boundary line. Indeed, the second part of this paper will describe the benefits to both the building owner and the adjoining owner in the service of an appropriate notice under the Act to facilitate this; some potential difficulties are also identified. The drafting of Section 1 has produced a self-contradictory concept of a wall which is built on the boundary, and yet at the same time is placed wholly on the land of one owner. To make sense of the concept, it is necessary to consider the definition of terms used in sub-section 1(1); this paper will show that seeking the definition of terms used in the Act is not that simple. There is also some confusion concerning footings or foundations excavated on the boundary line: should they be considered as part of the wall built at the Line of Junction and is there an automatic right to place them on the land of the adjoining owner?

Appealing and challenging awards

This paper discusses the two main methods of challenging awards made under Section 10 of the Party Wall etc. Act 1996 (‘the 1996 Act’), namely an appeal under that Act and a challenge based upon the surveyor or surveyors making that award having exceeded their jurisdiction — ultra vires. The paper details the legal basis, time limits, procedure and practical implications of challenges to party wall awards on both bases, primarily by way of proceedings in the Courts of England and Wales. It discusses both the technical and legal requirements of such challenges, as well as the practical considerations to be taken into account by the parties and professionals involved.

Serving valid notices: Not as simple as it first appears

Serving valid notices is the essential first step in progressing a request to exercise rights granted by the Party Wall etc. Act 1996. It is an entirely sound assumption that if an initial party wall notice is invalid, then any resultant associated award served must also be invalid and any works progressed by way of that award could be found to be unlawful. Serving notices is often perceived as an inconvenient and generic exercise to which only limited attention and time is afforded. In these overly litigious times, a review of the common pitfalls and misconceptions related to the serving of party wall notices is essential. When considering ‘serving valid notices’, it is necessary to consider both the means of creating valid notices and the means by which such valid notices are served. The following key areas of party wall practice and associated case law are therefore explored in this paper: the sections of the Act which prescribe service requirements; types of notices — Line of Junction, Section 2, Adjacent Excavation and all other lesser used notices and how to ensure they are validly drafted; ensuring notices are served on the correct person and/or legal entity; validly noting owner details. Key findings are: a detailed description of proposed notifiable works is essential; the service provisions of Sections 15(1) and 15(2) must be taken in their literal sense; notices served on a ‘body corporate’ must be served on the ‘Secretary or Clerk’; Section 1 notices must accurately describe the intended wall and differentiate between Section 1(2) and 1(5) rights; Section 6 notices must include detailed drawings and elevations and full details of any strengthening or safeguarding works if proposed; notices must always list all owners in full; always record proof of service; building owners must be asked if it is intended to change the building owner entity; Section 12(1) notice must be served before any associated notifiable works commence.

Party walls: Awards, appeals and a case law update

This paper provides a simple guide and reminder on the process for awards and appeals under the Party Wall Etc. Act 19961 (the Act). It also provides a brief update on some recent case law concerning party walls. It is aimed at all users of party wall procedures under the Act, whether they be party wall surveyors or building owners and adjoining owners. Lawyers who do not specialise in party walls may also find it helpful, as a brief distillation of some important cases.

I have my reasons : Scenarios where reasoned awards are necessitated under the Party Wall etc. Act 1996

This paper explores the scenarios where reasoned awards are demanded under the Party Wall etc. Act 1996.

Treading a fine line on bias: Impartiality and the Party Wall Surveyor

The dispute resolution procedure set out by the Party Wall etc. Act 1996 requires the establishment of a tribunal of surveyors to determine upon matters arising. Colloquially, this is called a statutory tribunal given that its formation is dictated by an Act of Parliament but the courts have only gone so far as referring to it as a practical tribunal. Over the years, the courts have variously credited party wall surveyors with providing expert determinations, being quasi-arbitrators and having a quasi-judicial role. Given this schizophrenic approach as to function, it is not surprising that the rules under which such tribunals operate are far from clear. The principles of natural justice enshrined in English law require members of statutory tribunals to be impartial. Most party wall surveyors endeavour to act impartially in the generally accepted sense of the word but many, unwittingly, will be acting with apparent bias by virtue of their relationships, both personal and working, with their appointing owners or other surveyors. The system of appointment and selection of surveyors is uncontrolled because in defining ‘surveyor’ the Act only excludes the parties to a dispute from taking on the role. This encourages, inter alia, the appointment by parties to the dispute of family members and employees as their surveyors, and the appointment/ selection by party wall surveyors of close acquaintances. All of which puts at least one of the parties in dispute at risk of a biased decision, even if unconsciously made, with their only recourse being to litigate. This must be intrinsically unfair.

Security for expenses under the Party Wall etc. Act 1996: What? When? How?

‘Until recently, the security provision was a little used element of the Party Wall Act but in light of the current economic climate it is becoming more common for Adjoining Owners to request security to be given.’1 2010 This trend has accelerated with the continuing increase in basement extensions and a growing reluctance of building owners to meet their obligations under the Act. Guidance on security is confused, out of date and often wrong and, since solicitors were warned in December 2014 by the Solicitors Regulatory Authority against offering banking services, the practical difficulties of arranging security have caused many surveyors to neglect this important right of adjoining owners. This paper reviews the guidance and solutions available.

Viewpoint: Party Wall etc. Act 1996

Richard Garry responds to Paul Bell's article on the Party Wall etc. Act 1996, published in the February 2016 issue, and offers some further clarification of the Act.

Easement of support and the Party Wall Act: Misnomers and misunderstandings

This paper will examine in detail the area of law that applies to party walls by making comparison between the law before the emergence of the Metropolitan Buildings Act 1844 (including its successors) and its interaction with the said Act after its enactment. Hence, by critically looking at this area of law, it may be possible to see how Section 9 of the Party Wall etc. Act 1996 and its former counterpart (Section 54 of Part IV London Building Acts (Amendment) Act 1939) have been drafted. It would be fair to say that, generally, easements have been a rather complex area of law and are constantly evolving. Hence, it appears that it would have made a great deal of sense to avoid getting drawn into such an area of law within the ambit of the Party Wall Act. After all, the relative success of the said Act has been founded very much on its prescriptive nature. Accordingly, this paper will examine the foregoing inference.

Party Wall etc. Act 1996: brief guidance for engineers

Paul Bell, of the ICE Structures Expert Panel, explains the relevance of the Party Wall etc. Act to structural engineers.

Payments under Section 11(11) of the Party Wall etc. Act 1996

It is generally known and accepted that under the Party Wall etc. Act 1996 when ‘building owners’ make use of building works carried out previously by their neighbours, the ‘adjoining owners’, they will have to pay a ‘due proportion of the expenses incurred by (the neighbour) in carrying out that work’. This seems to be perfectly reasonable but complications can arise when there has been a change in ownership and where there is more than one owner under the Act of the property in respect of which the work was carried out. Some surveyors apply the principle that unless the current adjoining owner actually incurred expenses in carrying out that work no payment is due under 11(11). Others believe that if building owners wish to enclose on a party wall built as part of the original building they must pay the due proportion under 11(11). A typical example is when a building owner wishes to extend into the space beside the ‘back addition’ and make use of the type ‘a’ party wall that is the external wall of the neighbour's ‘back addition’. Neither of the established references on the workings of the Act have much to say on the matter, which may suggest that any complications are more to do with surveyors than the law itself.1 The position turns out to be relatively straightforward and is summarised in the comment on the sub-section in both editions of The Pyramus & This be Club's ‘The Green Book’.2