The Cube

Party Walls and Access to Neighbouring Land

27 May, 2015

 

James Brenan is an expert in property law and litigation. He specialises in property agreements and conflicts over land and related contractual issues. Read his in-depth article on walls and access to neighbouring land. 

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Introduction

These notes explain in outline some of the main the private law rules under common law and statute that apply to making alterations to boundary walls or close to boundaries between properties, flank walls, and their foundations.

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The statutory rules – under the Party Walls, etc Act 1996 (referred to here as “the Act”) - affect all types of properties, whether they are terraced, semi-attached or wholly detached. All section references here are to those in the Act.

These notes are written by James Brenan of Cubism Law, a solicitor of many years experience in property litigation matters, as general guidance. They are not intended to be a substitute for proper advice on the specific facts of any situation.

The need for detailed expert advice.

If you have a matter under the Party Wall Act 1996 you will need to know not only your and your neighbour’s headline rights and duties, which are summarised below, but also you will need to be guided with regard to the conditions which can be imposed on these and how they can be frustrated. For example, if you have a right to underpin a wall and the only way it can be done is to access the adjoining owner’s land in an unduly inconvenient way, then the right is lost – section 7 (1). If you want to raise the full thickness of a party wall but have to remove a cantilevered external wall belonging to an adjoining owner which projects half way across the party wall and up to the boundary, then you are prevented – section 9. If there is another way of carrying out the work which does not involve accessing the adjoining owner’s property, even though it might be more expensive, it might be determined as unnecessary for you to have access over the adjoining owner’s property – section 8(1). If the proposal for works is unsafe in some way then you cannot carry it out – section 4 (3)(a).

These practical details may have only be brought to your awareness by an expert in building design, who may know such matters much better than any lawyer. These expertises are typically combined into the role of a party walls surveyor – who should be your first source of guidance. In so far as you need to enforce your rights against your neighbour through the litigation process, you will also need the guidance of a solicitor who specialises in this area.

What is a Party Wall?

At common law, party walls and structures such as fences or hedges are ones the stand over a boundary line between two properties. By the Act the term extends to (a) any wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests, and (b) any other wall that separates buildings belonging to different owners up to the height of the lower building.

Hedges and fences are only rarely found to be party structures; they usually belong to one side or the other.

Common law and statutory rights.

Where properties of different owners support each other the question arises whether there is either a positive duty of one owner to carry on providing such support or a passive duty not to remove such support. Where a wall stands over the boundary of two owners’ lands there are implied mutual easements of support, though these can be excluded by express provision. There may also be express rights under deeds, which should always be checked.

The Act intervenes and enables one owner to build on or over the line of junction, or immediately adjacent to it with fittings and projecting under the neighbouring property.

Establishing the Boundary Line

Determining the line of a boundary, and therefore whether a wall or fence stands over or immediately beside the boundary line, depends on a number of factors:

  • •  the express terms of the conveyance or other document of transfer
  • •  the above implications by statute
  • •  the lie of the land and positions of structures on the ground
  • •  outcome of any proceedings under the Land Registration Act 2002 for the fixing of a detailed boundary or for rectification or alteration of the register; and
  • •  the neighbouring parties’ intentions – for which their conduct since the relevant transfer is admissible in evidence; see Ali v. Lane 2006 EWCA Civ 1532.

 

A finding in the body of an award under the Act is not definitive as to the position of a boundary line between properties, because a mistake in that finding would amount to an error that goes to the jurisdiction of the award and thereby would render the award liable to be set aside. However, outside of proceedings to have such award’s finding set aside it would stand as evidence of the line of boundary.

Appointment of a Surveyor

Where proposed alterations will affect a boundary or a party wall it is advisable to employ a specialist surveyor to advise and serve notices under the Act and to have a solicitor available to advise you and assist the surveyor.

The Act does not define the term “surveyor” and so this can be anyone (except for one of the owners themselves) – who may be an engineer or an architect or professionally admitted or not.

The owner who starts the Act’s procedures in order to build on his/her land is referred to by the Act as “the building owner” and the owner of the adjacent land who will therefore receive the relevant notice under the Act is called “the adjoining owner”.

The surveyor who represents you under the Act does not have to have any other role and in particular need not be your project manager. It can work better to have a separate surveyor in the role of project manager, particularly in view of the possibility of disagreement between you and your Party Walls Act surveyor.

Before engaging such a surveyor you seek evidence of their expertise, e.g. by taking up references. Having a single joint surveyor to act for both sides is possible and alright in very simple situations. In situations of any complexity it is better to have a surveyor on each side. The 2 surveyors can then refer any points of particular difficulty or disagreement to a third surveyor.

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A surveyor who acts under the Act cannot be dismissed by their appointing owner, regardless of any contract provision. The appointment can only be ended in limited ways, such as through that surveyor’s refusal to act or becoming incapable. In that event you would need to be guided by your solicitor through the necessary process of re-starting the dispute resolution procedure.

Fees payable under a Party Wall award

The building owner has to pay his own surveyor of course as there will be a direct engagement.

The building owner can be required by an award to pay to the adjoining owner an amount to cover their reasonable fees.

It may be necessary to appeal an award to the Court simply in order to challenge the amount awarded for the adjoining owner’s costs.

In the absence of express agreement between the adjoining owner and his/her surveyor entitling the surveyor to any higher amount, the adjoining owner will only be liable to pay such costs to his/her surveyor as are certified by the award as recoverable from the building owner.

The award cannot require the building owner to pay legal costs incurred by the adjoining owner where no proceedings have been formally commenced.

Building a New Party Wall

Section 1 first lays down a notice procedure for a building owner to seek consent for building a wholly new wall over a boundary line.

Subsection 1(5) of the Act lays down an alternative procedure and a right for a building owner to build a new wall right on his own land and up to the boundary line and to lay down footings for it within the adjacent land, within 12 months.

That new wall which faces directly on to the neighbour’s land will then stand as something for which the building owner may be able to enter and repair across his neighbour’s land exercising rights under the Access to Neighbouring Land Act 1992 (see further below).

Altering an Existing Party Wall or Structure

Section 2 of the Act lays down various rights which apply in favour of a building owner where lands of different owners adjoin and “at the line of junction” those lands are built upon or there exists a boundary wall, which can be either a party fence wall or the external wall of a building.

The Act here has a wider ranging application than one might at first expect because the exact line of junction is a notoriously vague thing under the law. Ordinary filed plans for titles that are issued by the Land Registry, for example, do not show the exact line of junction and there is special procedure under the Land Registry Rules to establish a specific boundary.

The building owner is enabled to do a variety of works in relation to an existing party wall, including cutting into it, increasing its height and loading, cutting away or any projection from a wall or demolishing an overhanging part of a wall to enable a new all to be erected, underpinning a wall and even replacing it entirely, provided that certain notice and dispute resolution procedures are followed with regard to the adjoining owner.

If two buildings on either side of a boundary are so close together that it is impossible to clean and maintain them from the outside, either owner can cut into the other owner’s property in order to insert a flashing or weather-proofing.

A specific form of notice must be served on the adjoining owner at least two months before the start of any of those works, inviting a response within 14 days. If there is no response then a dispute is deemed to arise and the building owner then has power to nominate a surveyor for the adjoining owner.

The adjoining owner can serve a counter-notice within a month to require additional works to be done.

Where the only boundary structure being altered is a ceiling or floor rather than a wall the need for statutory notices does not arise. However, if a vertical boundary structure and a horizontal one are both being altered then notices must cover the horizontal works as well as the vertical ones.

The protection arising from one of these notices lapses if the works covered are not started within a year or if those works are not prosecuted with due diligence.

Works Affecting Foundations

Section 6 of the Act requires a building owner to give a particular notice accompanied by plans and sections at least one month before excavating within three metres measured horizontally from any part of a building or structure of any adjoining owner to a depth (of new excavation, building or structure) that is lower than the level of the bottom of the foundations of the adjoining owner’s building or structure.

Section 6 also requires a building owner to give a similar notice accompanied by plans and sections at least one month before excavating within six metres measured horizontally from any part of a building or structure of an adjoining owner if any part of the proposed excavation, building or structure within those six metres meets a diagonal plane at 45 degrees running upwards from the lowest level of the adjoining owner’s foundations. The Act though provides no mechanism for the building owner to use in order to find out where the adjoining owner’s foundations lie. The building owner has to rely on cooperation from the adjoining owner in this regard.

In those two circumstances the Act gives the building owner a power to underpin or otherwise strengthen or safeguard the foundations of the adjoining owner’s building or structure so far as may be necessary. The adjoining owner can also serve notice on the building owner requiring him/her to carry out such underpinning or strengthening works.

A deemed dispute arises in connection with the building owner’s proposal to carry out excavation or foundation works, as above, if the adjoining owner does not serve a notice of consent within 14 days. On completing such foundation level works the adjoining owner can request the adjoining owner to supply particulars including plans and section drawings, which should then be kept securely with that owner’s title documents.

Deemed Disputes

Unless the parties reach an agreement governing the carrying out of works following any notice under the Act there is deemed to be a dispute, which then has to be resolved by an “award”.

An award can either be imposed by a single joint surveyor or agreed between surveyors on each side or imposed by a third surveyor. It is in part for the building owner’s protection in the event of damage to adjoining owner’s property. The award will contain a record of that property’s pre-existing state and condition. It can stipulate particular methods to be used by builders in order to minimise damage. It will require the building owner to pay certain costs to the adjoining owner, including a reasonable amount for surveyors’ fees incurred. It can even require the building owner to obtain an insurance-backed guarantee of new works, such as foundations, for the benefit of the adjoining owner – and this power is applicable even though the proposed works will not be on the adjoining owner’s land; see Kaye v. Lawrence [2010] EWHC 2678 (TCC).

Limited Rights to Appeal under the Party Wall, etc Act 1996

Once you receive an award you should check it very carefully to see if it contains any unacceptable provisions on the matters which it decides. If it does you must act fast under legal advice because a valid award can only be challenged by an appeal to a County Court within 14 days of its receipt. In a substantial case, a more senior judge will act through the County Court pursuant to section 5(3) of the County Courts Act 1994. The statutory appeal procedure under Part 52 of the Civil Procedure Rules has to be followed, rather than the ordinary Part 7 or Part 8 procedure.

The Court will then consider all its matters afresh – usually with assistance from expert witnesses on each side or a single joint expert.

An invalid award - for example, one that strays beyond the Act’s scope - can be challenged over a longer period. Specific advice is still necessary as early as possible.

A valid award under the Act cannot be questioned in any Court other than by the above statutory appeal procedure. Interesting questions arise when an award containing discrepancies which have not been appealed against comes before the Court for enforcement. An owner might claim damages for its breach, a prohibitory injunction order in respect of its negative provisions, and a mandatory injunction order in respect of its positive provisions. Injunction orders and particularly mandatory ones are only awarded in the Court’s discretion. The Court might decide to adjourn proceedings so that a new award can be obtained on matters in dispute that were not decided by the first award. It is any way common in complicated matters for there to be a succession of awards dealing with the details of the party wall works and methods to be employed as the development progresses.   While it may be in some cases literally possible to sue for enforcement of an existing award it is often better for the parties to continue negotiating through their respective surveyors with a view to reaching a further award; otherwise disproportionate sums of money can be wasted on litigation.

The surveyors’ strength of position as against their appointing owners means, in effect, that they are an independant tribunal who can proceed with their determinations regardless of their clients’ preferences. While some surveyors are more ready than others to consult with appointing owners over a draft award, all of them inevitably sometimes make decisions that do not accord with their appointing owners’ wishes.

In a complicated case it may be advisable for an owner to employ a second surveyor to advise on rights of appeal against the award.

Disregard of the Act

A failure to follow the Act’s notice rules can be restrained by a civil injunction. Injunctions are awarded at a Court’s discretion, so the claimant party needs to come with clean hands and without delay. For example, giving a notice of impending works which omits to describe some of the works caught by the Act is as bad as not giving a notice at all.

An example of “unclean hands” would be where the claimant/adjoining owner unilaterally converted his neighbour’s wall into a party wall by building against it.

Failing to follow the Act is also prejudicial to a building owner, who can then be sued for removing support or for committing alleged nuisance, negligence or trespass. Following the Act’s rules in full and the obtaining of an award give a defence to any of those types of claim by a neighbour, although the award itself may impose liabilities.

The Act can be waived specifically between neighbours and this is quite common where the works are considered to be minor.

Rights of Lessees/Tenants

Any tenant owning a term having one year or more to run has the right to be given notices as an adjoining owner. That person’s landlord also is entitled to receive notices. Enquiries and Land Registry searches may be needed in order to find out the interests of neighbours.

An interesting question arises whether an owner of one floor within a building who proposes to do works affecting the party wall has to serve a Section 2 notice on all owners of the adjoining building or only on those owners whose premise abut the position of the works. There is no decided case on this point. The better view is that such notices are required if those owners will all be materially affected. If they were each to appoint a separate surveyor the costs for the building owner to pay would be very high.

Futures Owners’ Rights and Liabilities

A party wall award is purely personal and therefore does not create an interest capable of protection by a notice under the Land Registration Act. Accordingly liabilities to pay money or to do work under an award do not pass down to successors in title.

Civil liability for damage from works done without the protection of the Act remains with the person who carried out those works and does not pass down to a successor in title. A purchaser can though step into the shoes of an owner under the Act’s procedures, for example with regard to the special rules for recovery of contributions from an adjoining owner who takes advantage of a party wall by building onto it.

Between exchange of contracts and completion a seller would ordinarily only be under duty to disclose any notice or award received to the buyer, and not to serve any notice in reply or to make any appeal. It would be difficult, expensive and risky for any purchaser to try to bind a seller to conduct Party Walls Act notice and appeals procedures to his/her wishes, but it is possible with the use of elaborate special conditions in a purchase agreement. It is best therefore to have a short interval between the exchange of contracts and completion in the transfer of any property where there is a Party Walls Act procedure in progress.

Right of Entry

Many owners regard compliance with the Act as merely an expensive rigmarole. However, section 8 of the Act gives all building owners an additional right that can save them large sums of money. Any building owner or anyone appointed by him can during usual working hours enter and remain on any land or premises in order to carry out any work authorised by the Act. In the process he may remove any furniture or fittings or take other necessary action. He may, if accompanied by a police officer, even break open any fences or doors in order to exercise this right. Fourteen days prior notice must be given except in the case of emergency.

This right of entry has far-reaching ramifications. It is not necessary to go to one’s neighbour “cap in hand” and ask permission to cross over their land with materials or even heavy machinery for the purpose, say, of excavating foundations or enlarging your property. Accordingly, you can ignore your neighbour’s demands for compensation or the signing of a licence document.

There is scope however for litigation as to the level of connection that needs to exist as between the works under the Act and the need for entry over the neighbour’s land. The neighbour can argue that compensation should be paid in so far as your access or entry over his land facilitates the carrying out of a larger set of works, of which the works to be done under the Act form only a small part. There is no case law on this aspect, to the author’s knowledge.

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The Access to Neighbouring Land Act 1992

This Act gives limited right for one land owner to call on neighbouring owner and occupier for access, with the Court having a discretionary power to make an order in the event of disagreement. Such a claim must be made before a county court using the Part 8 procedure. Any pending application should be registered at the Land Registry or Land Charges Department to make it effective against successors in title. This right cannot be contracted away.

The court will only make such an order if it is satisfied, first, that the works are reasonably necessary for the preservation of the whole or any part of the ‘dominant land’ and, secondly, that they cannot be done or would be substantially more difficult to do without ‘entry’ upon ‘the servient land’. Entry can include doing anything necessary, such as drilling or erecting scaffolding, depositing plant and materials and temporary deposit of waste in the process of its speedy removal.

The court may decline to make such an order in situations where it is satisfied that any servient owner or occupier would suffer interference or disturbance or hardship of such a degree that it would be unreasonable to make the order. A good example would be if the order for access would involve demolition of part of a building.

This right is limited to enabling ‘basic preservation works’ which include:

  • the maintenance, repair or renewal of any structure in the dominant land and the clearance, repair
  • the renewal of any drain, sewer, pipes or cable on that land
  • the treatment, cutting back, felling or replacement of any hedge, tree, shrub or other growing thing that is or is in danger of becoming damaged, diseased, dangerous, insecurely rooted or dead, and
  • filling in or clearance of any ditch

The works may incidentally involve the making of some alterations, adjustment or improvement or demolition.

There is an ancillary right of inspection to assess the need for works and to prepare plans and generally in connection with them.

The court can impose conditions as to the carrying out of the works and also award fair and reasonable compensation. This compensation can be assessed with regard to both the applicant party’s financial advantage and the respondent party’s inconvenience. The Act lays down a cost/benefit comparison process to be gone through in reaching the amount of compensation. No compensation is liable to be awarded, however, when the access is for works to residential land. The court can also award reimbursement of expenses reasonably incurred by the respondent party and require that security should be provided in advance, as well as making the usual award of costs.

There is a damages remedy in the event that such an order is disobeyed by the servient owner. However, there is no right to claim damages for any alleged wrongful denial of access in the first instance before any order has been made. The scheme of the Act is not to create an easement of access – but rather a right to apply to the court for a discretionary remedy if the particular facts warrant it.

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James Brenan

James Brenan is an expert in property law and litigation. He specialises in property agreements and conflicts over land and related contractual issues. 

 

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James Brenan is an expert in property law and litigation. He specialises in