What is the Party Wall etc. Act 1996 and how do this affect me?
Unless you have encountered works under the Party Wall Act, you may never have heard of it. The world of architecture, planning and construction is subject to a lot of legislation obligating building owners and developers to adhere to legal requirements that may not be known or clear from inception. Addressing your scheme and your obligations successfully in a timely manner very much relies upon good planning, knowledge, resources and experience.
If you are considering carrying out building works or maybe if your neighbour is about to commence building works, this blog will be very relevant to you.
What is the Party Wall etc Act 1996 and why do I need to address it?
In summary, the Party Wall etc Act 1996 is used to provide a framework for preventing and resolving disputes on construction work affecting:
Boundaries
Walls that are shared or
Structures between properties
This may involve developments like:
Extensions
Loft conversions
Structural alterations and refurbishments
External landscaping works that involve structures and alterations to the ground
New Build
Basements
Pools
New roofs
New weatherproofing to shared/party walls
Remedial works to shared structures
Underpinning
To name a few
This is a legal requirement and not an option. Legislation under the Act is applicable in England and Wales.
If you are instigating the works, the act will refer to you as the ‘Building Owner’ (BO). You will be required under the Act to notify your neighbours of all notifiable works. The works you may be undertaking may have a risk of damaging neighbouring properties and your neighbours (other parties) under the Act are protected.
If you live next door or own a property next to a site that is carrying out building works, the act will refer to you as the ‘Adjoining Owner’ (AO).
When addressing the Act, this will be concluded with either:
A Party Wall Agreement or
A Party Wall Award
A Party Wall Agreement is not the same as a Party Wall award, I will address this further later in this blog.
The intention of the Act is to help all involved parties maintain good relations. The Act promotes construction work to be carried out in a safe manner, fair for all involved parties with consideration for neighbouring properties.
What does the Party Wall etc Act 1996 address?
Relevant works under the Act are called ‘notifiable works’, determined by the type of work that is to be carried out and its proximity to neighbouring or shared structures.
The Party Wall etc Act 1996 addresses:
Excavations near buildings
Works on a party wall or party structure that is existing
New building works on or at the boundary between properties
The obligations and rights of property owners
What does the Act require me to do?
Anyone carrying out ‘notifiable’ works must serve notice to the affected neighbours prior to the commencement of ‘notifiable’ works.
If your design team is not experienced in addressing the Party Wall etc Act 1996, we recommend that you engage in the services of a professional that does, or a Party Wall Surveyor.
Prior to serving a notice, we recommend speaking to your neighbour to let them know what is going on. This will also give them advance notice of the process so that they will have a bit more time to read-into what to do.
Who can serve a notice?
The law does not stipulate any required credentials of any person that serves a notice. Considering this, anyone could serve a notice however this is not a user-friendly procedure intended for a layperson.
A good place to start would be with a person that is a member of any of the following bodies:
I have read online that I can download the notices and serve them myself, do I really need a surveyor?
A lot of information is available online that details what to do and how to do it. You will also find guidance notes and sample notices issued by the government to assist you on carrying out these works yourself. Unless you understand the Act, we strongly discourage addressing this on your own. If you fail to serve the correct notice/s and subsequently fail to appropriately address the act, you will fail to comply with a legal requirement. The consequences can be costly and very distressful.
The person serving notice under the Party Wall etc Act 1996 is the person invoking the Act, this is a serious legal process which many inexperienced people or online forums fail to convey. Do not be duped into serving your own notice with an expectation that this is okay because the government provides sample notices for free. The person serving notice will need to have a real understanding of the Act, as this person will be operating under statute.
It is also worth noting that their is more than one notice that can be served under the Act, and it is critical that the correct notice is used. Failure to serve the required notice or all required notices will leave you falling short of your obligations under the Act. The process is black and white with no room for error, it is not simply and will not be simplified for any exceptional circumstances.
No notice can be served by any person/surveyor unless appointed to operate on behalf of the Building Owner under the Act
If the person serving a notice is not the building owner (which is typically the case), the person serving the notice must be formally appointed under the Party Wall etc Act 1996 to act on behalf of the building owner.
If you engage in a professional (which we recommend) please ensure that this is in place. Any person that suggests that this can be done at a later date is not appropriately addressing the Act and will leave any served notice invalid.
The benefits to serving a party wall notice early.
An award may take over 2 months to address though in some instances this can be quicker. At times the process can become drawn-out where neighbours, surveyors and or the design team are slow in responses. The process cannot be forced through in a rush. Addressing your obligations under the Act will take time.
Do not put pressure on your neighbours to respond quickly.
Neighbours are only required to respond within prescribed timeframes. Neighbours are not under any obligation to respond immediately and cannot be asked to do so because your builder has become available quicker than expected.
We strongly recommend that you do not put your neighbour in this position. Addressing Party Wall matters can be difficult and stressful to understand, this is a legal matter that you have brought to your neighbours’ door and if they are not familiar with the process, they will need to time to get to grips with what to do.
I am about to appoint a surveyor, who pays the fees?
Surveyors fees (for both parties) are typically paid by the person/building owner/party instigating the works.
In some instances where the works are addressing defects in a shared structure, depending on the use of the wall and responsibility for the defect, surveyors may agree to split fees.
What happens once a notice is served?
Once a notice is issued, responses are required to be received within a stipulated timeframe (typically 14 days). If no response is received, a second notice called a ‘Section 10 notice’ is issued giving the other party 10 days to respond.
Responses will either be:
Consent to the works
Dissent to the works and confirm the appointment of an agreed surveyor (your surveyor)
Dissent to the works and confirm the details of their own surveyor
No response
My neighbour refuses to respond, what happens next?
Your neighbour will be notified twice under the Act, the first notice has a response timeframe of 14 days, the second notice has 10 days. Once the timeframe has lapsed and no response has been received, your surveyor will need to appoint an independent surveyor on your neighbours behalf.
How many surveyors are involved in an Award?
If your neighbour dissents to the works agrees to appoint your surveyor, you will only need one surveyor.
If your neighbour dissents to the works and appoints their own surveyor, you will have two surveyors. In this scenario, a third surveyor is also agreed between the two surveyors however is not used unless there is a disagreement between surveyors which needs to be settled. It is not often that matters are referred to a third surveyor.
A notice has been served, is the Act in effect?
Where there is no notice, there is no Act.
The Act is invoked through the submission of a notice, this can only be done by the party instigating the works. The Act is not assumed or implied.
Please note that works may commence on a site prior to a party wall agreement or party wall award being in place, providing that these works are not notifiable under the Act. A site that includes notifiable works does not necessarily mean that none of the works can commence.
What happens if I commence notifiable works and I forget or fail to serve a notice under the Party Wall etc Act 1996?
There is no scenario where a person instigating the works benefits from ignoring the Act.
If works commence prior to having an agreement or award in place and you are carrying out notifiable work, you have failed to address your obligations under the Act. You will not be able to resolve issues through the Act as you cannot address the Party Wall etc Act 1996 retrospectively.
Where there is no award in place and a claim for damages is made by a neighbour, matters will need to be mediated between parties or taken to litigation. In this scenario, you may struggle to defend your position on any pre-existing defects, as you may not have a recorded schedule of condition completed prior to the commencement of works. This does not open the doors to unlimited claims on every crack found in an adjoining property, but the resolution process will be managed in a very different manner that may take far longer and be far more costly than under the Party Wall etc Act 1996.
What is a Party Wall Agreement?
A Party Wall Agreement is prepared when notified parties have consented to the works. It is not the same as a Party Wall Award. This is an informal agreement between parties that is often completed quicker and cheaper as this can be prepared without involving surveyors.
An agreement may include:
A copy of all notices served
A copy of all responses consenting to the works
Details of the proposed work to be carried out
Method and timing of the construction works
Any arrangements for access (surveyors and workers)
A record of the properties’ condition (optional but and highly recommended)
A Party Wall Agreement documents that the correct procedures under the Act have been adhered to and appropriately responded to.
What is a Party Wall Award?
A Party Wall Award is a legally binding document prepared by appointed surveyors. It is created when a notice is dissented to and issued only under the Party Wall etc. Act 1996.
A Party Wall Award is not a Party Wall Agreement.
An award will include:
Details of the work to be carried out
Method and timing of the construction works
Any required measures to protect adjoining property
A record of the properties’ condition
Under the Party Wall etc Act 1996, who is a Building Owner (BO)?
The person that owns the land from which notifiable works are to be carried out and instigates the works is referred to as the Building Owner (BO).
Building Owners (BO) are responsible for serving Party Wall Notices.
Under the Party Wall etc Act 1996, who is an Adjoining Owner (AO)?
The person that owns the land and property that shares a boundary, wall or structure that is within the notifiable zone under the Act is referred to as the Adjoining Owner (AO).
The property and interests of Adjoining Owners (AO) land are protected under the Act. They are to be notified of proposed (notifiable) works and have a right to object or consent to the works. An Adjoining Owner has the right to agree to an Agreed Surveyor or to select their own.
Under the Party Wall etc Act 1996, who is an Agreed Surveyor?
An Agreed Surveyor is a single surveyor appointed under the Act by the Building Owner and the Adjoining Owner.
An Agreed Surveyor’s role includes:
Preparation of the Award
Maintaining fair treatment for both parties
Addressing and resolving disputes impartially
Overseeing compliance with the Party Wall etc Act 1996
As only one surveyor is involved rather than of two, the process with an Agreed Surveyor can become more streamlined and cost efficient.
Under the Party Wall etc Act 1996, who is the Third Surveyor?
The Third Surveyor is an impartial surveyor selected by the two party wall surveyors.
The Third Surveyor’s role includes:
Providing an impartial additional opinion where requested
Finding a resolution to disputes that may arise between the two surveyor
Making a final impartial decision on matters where appointed surveyors are unable to agree
The Third Surveyor is selected at the first point of contact between the two surveyors and only becomes involved if a dispute arises.
The decision of the Third Surveyor is final and binding unless appealed successfully in court.
The system with a Third Surveyor ensures the party wall process can proceed even when matters have reached an impasse between the two surveyors.
Note from the author.
At MSK Design, members of our team have received training from the Faculty of Party Wall surveyors. We have successfully undertaken many Party Wall Agreements and Party Wall Awards and can (if appointed to do so) address your obligations under the Act.
Looking for guidance on how to address you Party Wall obligations, contact us to see how MSK Design can help you.