Rights of access to neighbouring land
Mi casa es su casa
If a party needs to gain access to neighbouring land in order to carry out works of maintenance, in an ideal world, the owner of that land will be happy to assist. However, this is not always the case, as sometimes neighbours are not so willing to be neighbourly.
If this is the case, it is possible that a party might have legal rights which can assist where the works are necessary and the neighbouring owner is reluctant to give consent.
The Party Wall etc. Act 1996
If the scenario involves a party wall, then there will be statutory rights under the Party Wall etc. Act 1996 ("the Party Wall Act"). The Party Wall Act provides a mechanism which carries out the delicate balancing act between, on the one hand, the building owner's rights to carry out the works in question and, on the other, the protection of the interests of its neighbour.
A party wall is defined in the Party Wall Act as a wall that stands on the boundary between the two properties. It may be part of one building, for example a wall of one house that also forms the boundary wall. Alternatively it may be part of two separate buildings, such as the shared wall in a semi-detached house or a terraced row of houses. However, it may not be quite so recognisable. A party wall can also be a wall on the building owner's land, where the adjoining owner has a building such as a garage that is enclosed by that same wall.
Examples of building works covered by the Party Wall Act might include:
- Constructing a new party wall on the boundary or a wall adjacent to the building owner's side of the boundary
- Carrying out works to an existing party fence wall
- Carrying out works to an existing party structure - for example, between two adjoining flats
- Building works within three or six metres of the adjoining owner's walls or buildings, depending on the nature of the works
- Building or placing special foundations on the adjoining owner's land
In order to rely on the statutory framework, the building owner must ensure that the notice procedure set out in the Party Wall Act is complied with and the relevant works must then be started within twelve months of the date of the notice. The building owner will be permitted to enter the neighbouring land to carry out the works, provided at least fourteen days' notice is given.
Whilst the works are taking place, the building owner must exercise reasonable care and avoid all unnecessary inconvenience to the neighbour. Should there be any damage to the adjoining property as a result of the works, the adjoining owner would have to be compensated for all expenses relating to the works. The Party Wall Act provides a dispute resolution procedure to be followed in the event that the parties are unable to reach an agreement on these matters.
The Party Wall Act can therefore be a very useful tool both for those wishing to carry out works and those whose property is next door. However, it is very formulaic, and it is important to be well advised by a Party Wall Act specialist both before commencing the process and during the course of the works. Failure to do this could result in significant delays or expenditure, and the possibility of a claim or an application for an injunction from the adjoining owner.
The Access to Neighbouring Land Act 1992
For parties who need to carry out works and are faced with an obdurate neighbour where the Party Wall Act does not apply, there may still be the possibility of making an application to Court to be allowed access in certain circumstances.
The Access to Neighbouring Land Act 1992 ("the Access Act") was enacted to permit parties access to neighbouring land to carry out maintenance work. It may be useful in situations where the Party Wall Act cannot be relied on - for example, where there is no party wall.
The Access Act provides a building owner with a statutory right to apply to Court for an Access Order if:
- the adjoining owner has refused to allow the access to its land and
- the works are:
- "reasonably necessary for the preservation of the whole or any part of the building owner's land"; and
- they cannot be carried out, or would be substantially more difficult, if access to the adjoining land is not granted
The goal of the Access Act is again to carry out a balancing act between the requirements of the building owner to carry out the works and the interference with the rights of the adjoining owner to enjoy its land and not to be caused hardship.
The key question for any building owner will therefore be whether the desired works are covered by the ambit of the Access Act. "Preservation" is in fact widely defined in the statute and includes:
- the maintenance, repair or renewal of any part of a building or other structure on the building owner's land
- the clearance, repair or renewal of drains, sewers, pipes or cables
- the treatment, cutting back, felling, removal 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
- the filling or clearing of ditches
The Access Act should therefore be considered if building works are desirable and the owner of the adjacent land refuses to grant access.
If the Court does make an Access Order, it will set out a number of strict conditions with which the building owner will have to ensure compliance. In particular, an Access Order would specify the time when the works can be carried out, the details of the works and compensation for any loss the neighbour might suffer. It would therefore not be possible to apply to Court for one maintenance issue and then proceed to carry out other works.
Other conditions may also be included, for example the requirement to pay the adjoining owner a fair and reasonable sum for the "privilege of entering" the adjoining owner's land. However, this will not apply if the works concern residential property.
It can therefore be seen that a refusal from a neighbour to permit works to be carried out may not be fatal to the project. However, the procedures are creatures of statute, and therefore must be followed closely if the building owner is to take advantage of their process and is not to expose itself to a claim. Early advice should be sought before any definitive action is taken.
In practice, it may seem that the two statutes may overlap with one another, but it is possible to manage this and navigate it in a straightforward manner. If the Party Wall Act is not applicable, then it may be worth considering whether the Access Act would be. Conversely, if the Party Wall Act does apply, then a building owner must comply with its requirements. As such it would not be able to use an access order under the Access Act to circumvent the requirements of the Party Wall Act.