Those of us outside London (which previously had its own legislation, put in place after the Great Fire in 1666) have had just over 20 years to become accustomed to The Party Wall etc Act 1996 (the “Act”), which provides a dispute resolution procedure allowing owners to carry out works on, or adjacent to, adjoining properties, while protecting the interests of the owners of those adjoining properties.
How it operates
The mechanics are relatively straightforward. The owner who wants to carry out the works is required to serve a party wall notice on the adjoining owner, who has the option of consenting to the works, serving a counter notice or triggering a dispute. If the parties are unable to reach agreement, an award is made by a party wall surveyor which governs the extent of the works, sets out the manner in which they are to be carried out and documents the original condition of the adjoining owner’s land in case the building owner’s works cause damage.
Those who specialise in party wall work – professionally rather than physically – join the Pyramus & Thisbe Club (www.partywalls.org.uk), named after the couple dating back to Ovid, but also more popularly portrayed in A Midsummer Night’s Dream, who are forced, owing to their parents’ animosity, to whisper sweet nothings through a crack in the wall between their respective houses. The club’s tie sports a depiction of the famous scene.
Something to be aware of
Buyers – particularly those purchasing for redevelopment – also need to be aware of a crack in the party wall legislation.
This arises since party wall procedure is personal to the party who serves the party wall notice, which initiates the process, and to its recipient.
The notice must be served by the “building owner”. The rights granted under the Act are personal to the original parties: the party who served the notice and the original adjoining owner on whom the notice was served. So, B, buying the land for redevelopment from A, not only cannot rely on any award made pursuant to a party wall notice served by A; but cannot even rely on A’s notice, and must re-start the whole procedure.
This, of course, can cause a delay, with consequent additional cost, to B’s intended redevelopment.
In some cases, there are ways in which the delay and cost can be reduced, if not abolished completely. In other words, ways to mend the crack in the wall.
Help is at hand
A buyer/tenant with the benefit of a contract for sale or an agreement for lease in relation to the land cannot step into the shoes of the seller/landlord in relation to a notice that has already been served, no matter how far down the road the parties are with the procedure. However, he can say that he is sufficiently “desirous of exercising rights under the Act” to be a building owner (section 20 of the Act); from which it follows that he can serve a notice in his own name.
It is also possible, in circumstances where the contract/agreement for lease has not yet been exchanged for the seller/landlord (building owner) to serve a notice in the joint names of the seller/landlord and the buyer/tenant. The buyer/tenant can then rely on the notice in joint names once the purchase has gone through. The completion of the sale/grant of the lease will not invalidate the notice.
Where the procedure has been started, the building owner changes, and a new notice must be served, it should be possible to speed things up by using the same party wall surveyor, who will be familiar with the site and the intended works and may – if things had progressed that far following service of the first notice – be able to make a very similar award.
If the works fall within section 2 of the Act (broadly works of repair, but sufficiently wide to include demolition and reconstruction required due to structural defects or because the wall is of insufficient strength or height for the purposes of any intended building that the building owner wishes to place on its land), then the building owner can dispense with the statutory notice and award procedures if he obtains the adjoining owner’s consent to the works.
Although the Act is silent on whether consent is transferable, by analogy with the position in relation to notices and awards, it is thought that a buyer/tenant cannot rely on an agreement made by the previous owner, and that a new agreement must be reached or a notice served once the buyer/tenant has sufficient standing. Again, although the procedure will need to be re-started, this should be straightforward if previous terms were agreed, since the adjoining owner will have considered the works and agreed first time around.
Ways to mend the crack
■ If contracts have been exchanged, then the buyer can serve a notice in his own name.
■ Prior to exchange of contracts, a notice can be served in the joint names of the buyer and the building owner on which the buyer can subsequently rely.
■ If the process must be re-started, then using the same party wall surveyor will speed up the process.
Helen Hoath is a director in the property litigation team at Squire Patton Boggs (UK) LLP
