Please see below for links to the Act and other sources of advice.
Various sections of the Act might apply.
In any of these situations, a Notice has to be served on the Adjoining Owner/s and the rest of the procedures must be followed.
It is important that enough time is allowed. The Notice period is either one or two months depending on which section applies and the Adjoining Owner does not have to respond to the Notice for 14 days. If surveyors are to be appointed, we always work as fast as we can but it can still take several weeks for all the procedures to be completed. If you can start the procedures with two or even three months notice, that will take the pressure off and things are more likely to run smoothly.
The list above is very brief so you need to refer to the Act for details or, alternatively, we can explain it or evaluate the requirements and explain and clarify your options. There are also some handy links below.
The Act is complex - it is sometimes necessary to obtain specialist advice or to refer to case law to interpret the application of clauses in the Act.
Building Owners & Notices
Building Owners must follow the correct procedures which starts with serving an official Notice on the Adjoining Owner.
If the Notice contains errors (such as referring to the wrong sub section or missing off an official owner), it is invalid and therefore, everything that follows is also potentially invalid. That usually causes additional costs so, for that reason, it is very important that the notice/s issued correctly so an evaluation by an experienced person can be very important.
We can assess the intended works, advise on the correct procedures and, if desired, give advce in respect of the notices for the Building Owner thus ensuring that no additional costs are incurred.
See our Party Wall Notices page for more information.
Adjoining Owners & Notice Responses
The Adjoining Owner can agree to the works but, depending on the nature of the works, it is sometimes preferable either to negotiate conditions or to select the "dissent" option and appoint an Agreed Surveyor or an Adjoining Owners Surveyor. The Act calls this being in dispute, even though there might be no actual dispute.
We can advise the Adjoining Owner on the procedures, risks, options or can take all necessary actions and issue the response notice/s on their behalf.
We try to keep things in proportion whilst ensuring that all party's interests are protected.
Schedule of Condition
If Surveyors are appointed, it is necessary to record a schedule of condition of the Adjoining Owner's property as a prerequisite to the Party Wall Award. This helps to avoid disputes later if damage is believed to be caused.
A Schedule of Condition can also be prepared as a condition of agreeing to the works.
The schedule should be prepared by an independent knowledgeable person (not the Building Owner) so a Party Wall specialist Surveyor is the best choice.
Our Schedules of Condition are usually largely photographic based and usually include dozens of annotated photographs to give the best possible record of the condition of the Adjoining Owner's property.
If agreed between both parties, one Surveyor acts independently as Agreed Surveyor with legal responsibility to both parties. This helps keep costs to manageable proportions. The parties involved cannot act as surveyor.
The Agreed Surveyor prepares the Schedule of Condition and then issues a Party Wall Award (see below).to both parties.
Often, he does not need to take any action during the course of the works but, if there are allegations of damage, he would inspect and decide what action is appropriate.
Building Owner's or Adjoining Owner's Surveyor
In the event of the Adjoining Owner dissenting and requiring the Employment of a Surveyor, both parties need to appoint Party Wall Surveyors. The surveyor appointed by the Adjoining Owner is usually referred to as the Adjoining Owners Surveyor although the Act simply refers to the Appointed Surveyor/s.
We can act as Appointed Surveyor either for the Building Owner or the Adjoining Owner.
The two Surveyors agree a Schedule of Condition and jointly issue the Party Wall Award.
A third surveyor is selected (but not appointed) so that later disputes can be resolved quicker and cheaper than going to Court.
Party Wall Award
The Party Wall Award is a document prepared either by the Agreed Surveyor acting on his own or by two appointed surveyors acting in agreement.
The Party Wall Award contains details of the works that are to be carried out and precautions to be taken by the Building Owner (and his contractor) to protect the interests of the Adjoining Owner. It is a document with legal status.
We prepare Party Wall Awards on a regular basis and can advise either party about the legal implications of the procedures.
Health and Safety considerations
The Party Wall Award will probably need to refer to (or ask for) safety precautions where work is being done close to the Adjoining Owner's property.
This information from Health and Safety Executive (HSE) is about mandatory requirements on all building contracts!
Whether or not Party wall provisions apply, it is mandatory for your builder to comply so he must prepare a Construction Phase Plan (CPP) even if the Party Wall provisions do not apply.
If it is done properly, the Construction Phase Plan and attached documents will be sufficient for Party Wall Award purposes but it is our experience that most small builders do not know about these requirements and do not carry this out properly. Therefore, and especially as the client could have some residual responsibility if there is an accident, we recommend that clients read the information carefully and you pass on the links above to the builder. They must ensure that the requirements are followed.
Guidance for you as the client is here http://www.hse.gov.uk/construction/areyou/domestic-client.htm.
Your builder can use this free app on the CITB web site as guidance for the CPP. We have not used it so cannot give a positive recommendations and, of course, there are other sources of guidance. Pass that link on to your builder if he does not have experience of these matters (he should - it is mandatory!).
Contrary to popular opinion, there is no automatic right to put scaffolding on a neighbour's land or even use it to access the works or build the brickwork.. In the absence of the correct procedures or an agreement, that is trespass.
When It is necessary for scaffolding to be erected on the Adjoining Owner's land to enable the construction of building works, the scaffolding needs to be properly designed and written permission obtained from the Adjoining Owner as part of the Party Wall procedures. This consent is called an Access Agreement If this is not properly pre-planned and included in an official agreement, the Adjoining Owner could withdraw consent without warning or even might never give consent.
Without consent, workmen, scaffolding or materials on the Adjoining Owner's site are committing trespass and you, as the client, could find yourselves in Court. Problems like that tend to add considerably to the cost..
We can give more detailed advice if needed.
Our phylosophy and Party Wall Agreement
For inner cities, dense development areas or extensive building works, the Act provides good and proper protection for Adjoining Owners.
Where the risks are low, for example less dense areas and where the works are comparatively minor, we can, in the right circumstances, help the two owners to reach a proper enforceable agreement without the full costs and inconvenience of a Party Wall Award (the Notices still need to be served).
Our philosophy is to encourage agreement between the parties. For example, we prepare our notices in a way that is reassuring and friendly to encourage agreement. Also, we can assist with a Party Wall Agreement for both Building Owners and Adjoining Owners to reduce the financial burden of the procedures.but which maintains protection for the Adjoining Owners.
If we are employed at the stage of issuing Notices, we take care to explain the procedures to Adjoining Owners. That and our professional approach often results in an early agreement to the works.
Our cost estimates include a number of options so that the costs are not unexpected.
Problems with agreeing a boundary?
The legal documents are not always as helpful as one might hope, either for the position of the boundary or the ownership.
We can help by surveying the boundary line and possibly by preparing accurate plans, a desk study of available historical documents and / or reference to deed plans and Land Registry records.
We are sometimes jointly employed by both owners to determine the boundary line which, of course, reduces the scope for disputes.