As pointed out by the Pyramus & Thisbe Society, a Party Wall dispute can, for the very wealthy, end up at the Supreme Court. As legal advisors to many listed property owners, our advice would be to avoid litigation by following the key aspects of the Party Wall Act…
The Party Wall Act was designed to address potential disputes and promote harmonious relationships between homeowners and their neighbours when carrying out construction work that could affect shared walls or boundaries. This applies to all properties, whether or not they are listed. However, it is fair to say that listed property owners, affected by Party Wall work, may be especially concerned to ensure proper care and procedures are taken, due to the vulnerability of such properties.
Prompt advice on proposed works is key. Specialist Surveyors can provide structural assessments and opinions but homeowners need to remember that legal issues can also affect potential building works and the ability for these to be undertaken. Quite aside from the Party Wall Act, you should first review Planning and Building Control requirements (including relevant listed building consents); any covenants that would hinder or affect the proposed works and the potential concerns of lenders and insurers in that regard.
When does the Party Wall Act apply? The Act applies to a range of construction activities, including building new walls at the boundary, altering existing party/boundary walls, and excavating near adjacent properties. It is crucial for homeowners to determine if the Act is applicable to their proposed work, as failure to comply can lead to disputes and a potential claim for damage caused. A helpful summary setting out the detail (and examples of work that requires such a notice, the minimum notice required in specific cases and draft letters) is published by the Government and is available online.
Below is a summary of the key aspects:
1) Serving a Party Wall Notice: To initiate the process, the homeowner intending to carry out the work must serve a Party Wall Notice to their affected neighbours.It is preferable to the process if this can be discussed beforehand. The notice should include information giving a proposed timeline, and a clear description of the proposed works so that the recipients can assess the potential impact on the adjoining property.
2) Responding to the Party Wall Notice: Upon receiving the Party Wall Notice, the affected neighbour has three options: consent, dissent, or issue a counter-notice. Consent implies an agreement to the proposed work, allowing the homeowner to proceed. Note that if no reply is given within 14 days of the notice a dispute will be assumed. Alternatively, the neighbour can issue a counter-notice within one month, outlining modifications they wish to be made to the proposed work.This initiates more opportunity for discussion or agreement and further time limited options also apply.
3) Appointing Party Wall Surveyors: Although one Party Wall Surveyor can act for both, in situations where a dispute arises or a counter-notice is issued, it is common for both parties to appoint separate Party Wall Surveyors. Owners of listed buildings will need to find a specialist who also understands their kind of building to ensure that the vulnerability of their property is properly regarded. It is fair to say that not all Party Wall Surveyors have that specialism. Note also that it is not straightforward to dis-instruct a surveyor in this process, so careful consideration is required.
These surveyors aim to resolve disagreements regarding the proposed construction work. Their role is crucial in ensuring that the interests of both parties are fairly represented and that the project proceeds smoothly, however if the parties cannot agree it is possible for a third surveyor to be appointed to review and make the Party Wall award.
4) Party Wall Agreements: The Surveyor/s will make the Award which sets out the detail of what is to be done and when and for most property (especially listed buildings) this will include a condition record of the building prior to works commencing. This assists with the assessment of any damage caused in the process. This legally binding document is final and can only be rescinded or modified by a court. Parties have 14 days from the award date to appeal its terms in the County Court.
5) Rights and Responsibilities: The Party Wall Act establishes rights and responsibilities for homeowners and their neighbours. Homeowners have the right to carry out construction work, provided they follow the legal procedures outlined in the Act. This includes access on notice –indeed a neighbour can, in extremis, be prosecuted for failing to allow access under the award. Conversely, neighbours have the right to be notified as to access and to redress if the terms of the award are broken. Both parties are encouraged to minimise any adverse effects on adjoining properties and must compensate for any resulting damage.
6) Sanctions for non compliance: The Act was intended to facilitate effective communication and dispute resolution between homeowners and their neighbours, but it is generally considered to lack effective statutory sanctions for non-compliant parties. However, the effect of not serving a notice is mainly to deprive the offending party of the rights and protections that the Act gives them and leaves them vulnerable to claims for trespass and damage from affected neighbours. This would include injunctions to require work to cease.
As seen in Listed Heritage, membership journal of the Listed Property Owners’ Club.