The Party Wall etc Act 1996 provides a framework for preventing and resolving disputes involving party walls, boundary walls and excavations near neighbouring buildings. A building owner proposing to carry out work covered by the Act must give adjoining owners notice of their intentions in the ways set out in the Act. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes and for the appointment of a surveyor for the adjoining owner.
The work involved in resolving party wall disputes is generally handled by specialist surveyors and where the parties’ surveyors are unable to agree matters, the Act provides for the appointment of a third surveyor. The majority of disputes are therefore resolved outside the court process.
Foundations separating adjoining buildings also fall within the definition of a “party wall”. As more people choose to improve their properties rather than move, and with the particular popularity of basement extensions, disputes have started to find their way to the courts, particularly where a building owner wants to dig below the foundation level of a neighbour’s property.
An owner can generally carry out work to a common foundation using the mechanism of the Act. However the construction of “special foundations” going below the existing foundations and beyond the boundary line require the consent of the adjoining owner. Therefore the adjoining owner can prevent the works progressing by refusing consent.
This issue arose in the recent case of Chaturachinda v Fairholme (unreported) 23 September 2015. In that case the adjoining owners were unable to resist and control their neighbours’ works as they were not “special foundations”. This was because the works proposed involved a reinforced concrete box underneath the adjoining property which did not affect the existing boundary foundations. The practical response to this case may be that building owners will propose alternatives schemes, one “outside” the Act which does not require consent (but probably more expensive for the building owner) and one “inside” the Act to which most adjoining owners will consent given the advantages of the compensation available under the Act where damage is caused, but where a risk of refusal exists.
Works within the Act should not cause “unnecessary inconvenience” to the adjoining owner. That was one of the issues in Gray v Elite Town Management (unreported) 23 July 2015. The adjoining owner’s party wall surveyor refused to approve works for this reason. The court found that the surveyors had no duty to propose any alternative underpinning designs to avoid such “unnecessary inconvenience”. It was for the owner and his team to come forward with a new design. Whether this will be reviewed on appeal remains to be seen.
Additionally, in that case, the court concluded that the adjoining owner’s surveyor had acted as a mere cipher or agent for the adjoining owner, Mr Gray, and she was not therefore sufficiently independent of Mr Gray. Accordingly, she was not a surveyor for the purposes of the Act. This case highlights the popular misconception about the role of party wall surveyors. Although party wall surveyors represent building and adjoining owners, their appointments are independent and they will advance arguments on behalf of their appointing owners only insofar as they consider that appropriate in their expert opinions. They cannot advance arguments favourable to their appointing owners which they do not support professionally.
Finally a party wall award is a legal document that sets out the works to be carried out and how they are to be carried out. The surveyors will decide who pays the costs in producing the award and for any necessary checking that the work has been carried out according to the award. However, the award is only ever personal to the parties. This means that the award will not bind successors in title and problems can arise when building owners sell before completion of the works. The purchaser of the next door property will not be bound by the terms of the award including any obligation for instance to pay for the cost of any remedial works.