by Josephine Flattery
Party wall legislation is controlled by Part VI of the London Building (Amendment) Act 1939, which represents the combination of several statutory regulations which have evolved since 1667 encompassing building works and law, together with their effect on neighbouring interests, to which the builder must adhere.
The 1667 Act, drawn up as a direct effect of the Great Fire of London, enabled all professionals within the building industry to undertake the rapid rebuilding of the devastated areas with the benefit of better “regulation, uniformity and gracefulness” and in order that such similar destruction and loss of life should be prevented in the future. It was here that the first mention of notice being given before commencement of work appears to have been made.
The Building Act of 1774 largely repealed the contents of the earlier Act, principally discharging the restriction on the height of buildings in narrow streets. However, it was at this time that limitations were imposed on what work could be undertaken to the party walls and chimney flues: it was set out, furthermore, that that work would be controlled by the agreement of two or more surveyors.
This more closely follows the regulations contained in Fitz-Ailwyn’s Assize of Buildings, ordained in 1189 “for the allaying of the contentions that at times arise between neighbours”. This also set up one of the first standards for the construction of party walls. A neighbour could object to a building in the course of erection and demand the Assize. After hearing the case the mayor would issue an award to be met by the offending party. These principles, which defined neighbouring owners’ rights, have become the basis for the legislation, which now controls the work undertaken on party walls to this day.
No further substantial headway was made in party wall legislation until 1939, although the London Building Act 1930 and its 1935 amendment Act did strengthen the practices relating to constructional matters. The 1939 Act amended all enactments relating to streets, buildings and structures in London, with Part VI, being particularly pertinent to party structures, remaining at the forefront of the party wall matters.
The Act, which operates within the confines of the old LCC boundaries, restricts the position and rights of building owners during construction, while promoting certain measures which benefit the adjoining owner.
On the one hand the content of the Act is precise and specific. On the other, however, its operation and enforcement are subject to interpretation, resulting in a divergence of methodology among different surveyors.
As a consequence a number of surveyors concentrate on this work, many of the more well known among this specialised breed belonging to the Pyramus and Thisbe Club, an organisation set up to clarify and disseminate knowledge.
Intepretation — a theory
Part VI of the 1939 Act strictly relates to party walls and sets out the rights and duties of building and adjoining owners. Part I, however, introduces these aspects and, more particularly, interprets the meaning of several phrases used throughout such neighbourly matters. I do not intend to comment individually on each of these except to say that the definitions of party fence walls, party walls and the like are specifically and adequately explained: in simple terms a party wall has been defined as a wall which forms part of a building and separates the land or buildings of differing owners.
Unfortunately, the legislation neglected to mention the interpretation of “owner”, and the resulting confusion and rhetoric over the years has produced bountiful work for both the members of the aforementioned club and their legal colleagues. This term is still hotly disputed, but suffice it to say that its meaning includes all freeholders; tenants and subtenants, but not licensees; and any person lawfully in possession but excluding anyone with less than a yearly interest. Complications arise when the interest in the property is uncertain, such as during the sale of a property.
In general terms all these people must be served with notices detailing the work to be undertaken. Even where substantial doubt exists notices should still be served, but it is here that the lawyers should be allowed to fight the matter to a conclusion. It is far better to send too many notices than, by sending an insufficient number, cause the building owner to be restricted in the works allowed to be undertaken. Now let us proceed to the heart of the Act.
Part VI of the Act is subdivided into sections, each discussing certain aspects and measures to be followed.
Sections 45 and 46 appear to have similar emphasis, the first dealing with rights of adjoining owners where the boundary line is not built on, the latter encompassing the situation where the junction line of the adjoining lands is built on. Section 46 is more complex and onerous to utilise than its neighbour, but the assumption of application is often required where uncertainty occurs and renders the following of section 46 more equitable for the parties.
Section 45 requires that certain obligations must be met by the building owner. He shall serve notice of what works are to be undertaken with a result that:
- if the adjoining owner assents, the wall can be constructed equally on the lands of the owners, or in a position as agreed, and the full cost met by the building owner until such time as the adjoining owner requires to make use of the new structure, when he shall bear a due proportion of the previous costs at rates commensurate with time when the usage is made, or
- where the adjoining owner dissents from the content of the notice, the wall is required to be placed wholly on the building owner’s land and at his own expense.
Section 46 specifically sets out the rights of the building owner, and determines what work can be undertaken to the wall, namely to make good, thicken, repair, demolish or rebuild where required. Many of the items limit that work depending upon the condition and state of repair of the wall, and the building owner is requested to make good all damage occasioned to the adjoining premises by the works to the party wall.
The following section heralds the introduction of the duties that a building owner — and ultimately his surveyor — must undertake in order to exercise the aforementioned rights. The serving of party structure notices will, in part, satisfy those duties provided they describe the particulars of the proposals and the date for commencement. This point is important, as the service of the notice must be timed so that the works are commenced at least two months and not more than six months after its service.
To summarise, the building owner has to determine — whether the wall is a party wall; where its position is in relation to the boundary; who shall be affected by the works; what work is going to be undertaken; and finally when it is to be started. The adjoining owner must now agree or dissent within 14 days or suffer the consequences of automatically dissenting.
Forward then to section 48 — or the counternotice — which is the device which the adjoining owner can employ after receipt of the building owner’s notice. It can require the building owner to undertake amendments to any proposed special foundations or to carry out such reasonable works on the newly-to-be-constructed party wall for the protection of the adjoining owner. This entails, for example, the raising of chimney stacks to allow the flues to draw adequately.
This section is generally little used and such works that the adjoining owner may require to be carried out are more effectively agreed as part of an award following dissent — but enough of that, as we have yet to reach the dizzy heights of discussing agreements.
As with section 48, section 49 can also be fairly quickly passed over as it deals with what happens if the building owner does not respond to the section 48 counternotice. In either case a difference of opinion has arisen.
Section 50, like many other aspects of party wall procedures, has been known to throw adjoining owners into despair and indecision — not so, I trust, their surveyors. The question as to whether to strengthen or underpin, or not, being the question. However, it is one requiring an objection within 14 days, failure so to do meaning that the adjoining owner has consented to the work.
In essence, if the building owner wishes to construct within 10ft (or 3m for those of you under 30 years of age) of the adjoining property and the structure extends beneath the bottom of the adjoining foundation, the building owner may be required to underpin or strengthen this foundation. Similarly, if the building owner wishes to build within 20ft (6m etc) and this structure meets a plane drawn down 45 degrees from the bottom edge of the foundation similar safeguarding of these foundations must be undertaken (see the attached sketch for a simpler interpretation of this).
Section 50 is somewhat different to the previous sections, in that it is the only one which allows for the payment of compensation for any inconvenience, loss or damage which may result from the works.
Any inevitable confusion that the adjoining owner experiences should be allayed with the commencement of proceedings under section 55. It is to be hoped that a disagreement between the owners has now occurred and forthwith the parties must confer and agree in the appointment of either one or three surveyors to ensure that no further contentious discussions ensue without resolution! This is provided none of the surveyors dies, or is incapable of acting or unwilling to do so.
Whomsoever is finally appointed discuss between themselves the contents of an award or agreement, which will settle those “whether, where, who, what and when” questions posed earlier, and agree costs and fees incurred. A further instrument has been created to protect the owners — namely the production of a schedule which records the present condition of the adjoining property, and which is subsequently checked to ascertain damage at the completion of works. This should then be settled by the building owner and the award document signed and “published”, or posted, to the respective owners. Facility for appeal of the award is through the county court, but only if the document has been improperly prepared — the building owner cannot seek an amendment to the party wall award if he is dissatisfied only with the reasonable restrictions imposed upon him by this. The building works can then proceed — in theory.
Working — in practice
The practical aspects of running party wall projects involve a delicate balancing act of management between the respective owners and the design team — with problems to be exorcised throughout the procedure.
Where single, small developments are proposed affecting only one or two party walls, matters can be quickly resolved. But where developments include a multitude of properties, and the properties themselves are in multi-occupancy, the time constraints imposed on the building owner, instead of being designed to aid him and speed up the procedures, can restrict and impose further difficulties on him.
The very nature of management contracting techniques now commonly employed has also exacerbated the problem. Large developments are invariably let in phases to separate subcontractors, each dealing with a portion of the works, and while a design team may be initially involved many of the detailed decisions which will affect the party walls are made by these specialists.
The difficulty arises as many are appointed only immediately prior to commencement of the work, and thus the surveyor will have been expected to serve notices, agree and sign the awards leaving at least a two-week period in advance of the commencement of the work in case of appeals by the respective owners — and all without the benefit of the final design details!
This delays the commencement of the work and can lead to a situation in which notices become invalid as the works are not commenced before the six-month period expires. As a consequence the party wall procedures are split to mirror the on-site conditions, with the demolition works agreed initially, to be followed by other aspects of the works.
Part VI of the London Building (Amendment) Act 1939 may be unique in that the surveyors duly appointed in these proceedings do not act for the benefit of their clients — and thus the use of the terminology “building or adjoining owner” is explained. The purpose of the appointment of the surveyors, as set out and clarified in the 1667 Act, is to ensure the continuing stability and acceptability of the method of construction employed for the party wall, and thus the surveyor’s first duty is to act dispassionately and impartially. Unfortunately, this seems sometimes to be forgotten.
With luck, and a great deal of patience, the surveyor should have reached the stage where awards can be agreed. Unless the building owner’s surveyor is dealing with a particularly lenient and amiable surveyor — which does not often occur — the Act requires the award to be agreed, signed and published to the respective owners before the commencement of the work. Often this allows only for a period of four weeks from receipt of acknowledgement of the party structure notice up to the two-week publication period in which to agree all aspects of the work, and therefore co-operation and discussion between the appropriate parties are essential.
A further aspect of party wall work is that many surveyors wish to include common law matters with the party wall procedures, ie the inclusion of discussions on right to light matters, compensation, and loss of business revenue as a result of the works. Furthermore, many surveyors attempt to restrict the hours of working across the site as a whole, rather than refining their work to strict party wall matters. It is important that surveyors restrict their discussion to the areas of work with which they were appointed to deal — and that at no time they act ultra vires. If this does occur, there is scope for either owner to object and appeal against the content of the award.
The surveyors should now have reached the position where the work can commence. At this stage there are two important points to be borne in mind by all parties to the document, the first that of keeping the peace during the progress of the works. While the building owner is at liberty to carry out such works under the terms of the Act, the adjoining owner should not suffer unreasonably or be victimised by any aspect of the party wall procedures.
Second, the building owner’s surveyor should always ensure that the contractor and building owner fulfil their obligation under the awards — and go no further. Should the contractor undertake any work on the party wall that has not previously been agreed, the adjoining owner will be at liberty to seek an injunction immediately to stop the works. It is generally a simple matter to ensure that this does not occur, provided that the award has been precisely and adequately worded, and particularly relates to any repairing clauses which may have been included with the award.
It is the surveyor’s duty to negotiate the extent of remedial action or compensation required after the completion of the building works. The difficulty arises in ensuring that both parties are clear on the extent of work which the building owner is required to undertake and the extent and standard of that remedial action.
Conclusion
The workings of the Act have without doubt simplified the difficulties in party wall procedures. However, all matters, regardless of the legislation’s clarity and definition, do become steeped in complexity when influenced by the “human touch”. Yes, building surveyors are fallible too, and while the Act is precise and specific it is open to mutual interpretation. None the less it should be remembered that if work proceeds without a notice or exceeds the limitations of the award the maxim must be to apply for an ex parte injunction — immediately.
