Party Wall Surveyor

Case Law

Chronology

Checking Engineer

E Mails

A Guide to the Party Wall Act

Injunction

Notices

Party Wall Award

Payment for works done

Qualifications

Raising Downwards

Rights of Adjoining Owner

Rights of Building Owner

Rights of Entry

Security for expenses

Schedule of Condtions

Third Surveyor
 
Bruce Spenser MSc MCIOB
Party Wall Surveyor
07927123469

Bruce is an experienced and expert Party Wall Surveyor and ensures that the Building Owner can expeditiously proceed with their lawful works whilst fully recognising and protecting the interests of the adjoining owner.

Bruce is regularly appointed by the Building Owner carrying out the works, the affected Adjoining Owner or by both owners as the agreed surveyor. 

His office in Stoke Newington, London N16 is ideally situated to cover the surounding  areas and boroughs;  Clapton & Stamford Hill in E5, Dalston and E8, Shoreditch & E1 and the London Boroughs of Hackney, Haringey, Islington and Walthamstow where Bruce's experience and expertese is grounded.  Where reasonable Bruce also acts thoughout, London, Greater London, England and Wales and Bruce has utilised the Party Wall Act in Scotland when parties have agreed.

Please contact Bruce for information, advice and an offer of professional services.

bruce@partywallsurveyor.biz

Party Wall Surveyor

When you are considering having any work carried out which is subject to the Party Wall Act you should contact a Party Wall Surveyor and get from them an offer of professional services with prices attached and try to pin them down to a fixed fee. They should be able to advise you over the phone and then send you, by email, their offer. Compare the offer with other Party Wall Surveyors and talk to your architect and friends, neighbours and colleagues who have used party wall surveyors. Your chosen party wall surveyor should produce a legal document of appointment. Your Party Wall Surveyor should then advise you of the Party Wall Notices to be submitted and the timescales involved. Your Party Wall Surveyor should serve the Party Wall Notices with a reassuring and professional covering letter to all adjoining owners.

You can recognise a Surveyor who has been assessed and registered by the Chartered Institute of Building or the Royal Institute of Chartered Surveyors by their suffixes MCIOB or MRICS (ie Bruce Spenser MSc MCIOB)

Case Law - The Party Wall Act came into being in 1996; however it stands on the shoulders of over a hundred years of Party Wall case law and statute. Some common case law is listed below:

· Correct Method of appeal against Party Wall Awards and decisions of Party Wall Surveyors - Zissis v Lukomski & Carter (2006) - Part 52 is the correct method of appeal

· Noise, dust, dirt etc. whilst carrying out works subject to the Party Wall Act - The reasonableness of such - Andrea v Selfridge (1938) - Be reasonable - the author thinks of the doctrine of the reasonable man

· Serving of Notices, by whom and who they should be served upon, what should be in the notice, when they notices should be served, time limits, separation of the good from the bad of a party wall Award, Validity of awards - this is spelt out within the act and there is much case law

· Common law liability stands- Louis v Sadiqi 1997 - If the act is not complied with

· Duty to weather a party wall- Marchant V Capital (1983) - after demolition and also imposition of continual obligations- also contained within the 1996 Party Wall Act

· Obligation imposed by party wall awards- Mason v Fulham (1910) do not carry on after the sale of a property

· The Jurisdiction of the party Wall Surveyors are covered in much case law - notably Stone V Hastie (1903)

· Legal Costs Incurred-Reeves v Blake covers the legal costs incurred and the Party Wall Surveyor’s ability or non-ability to award or adjudicate on them - very interesting this one

· Compensation- Crowley v Rushmoore -

· Usurping of common law rights by the Party Wall Statute - Louis V Sadiq - LJ Evans

· You have the chance to comply and utilise the Party Wall Act - if you choose not to you cannot expect the law to retrospectively support you- ROADRUNNER – LJ CHADWICK

Checking Engineer - Utilise an independent Engineer to consider the effect of the works on your property - The act allows for this under, "costs" which allows for Fees of experts - the engineer is know as the checking engineer

Chronology of the Party Wall Act

1667 – London Building Act – introduction of Surveyors

1707 – 1709 London Building Acts

London Building Acts – modelled throughout country

1844 – Metropolitan Building Act

1854 – Common Law Procedures – the three surveyor tribunal

1855 – Metropolitan Building Act – definition and rights of owners

1858 – Public Health Act

1858 – Local Government Act - Deposit of Plans and Drawings

1863 – Cowen v Phillips – Adjoining Owner once contracted to purchase

1870 – Thompson v Hill – definition of adjoining owner

1873 – Weston v Arnold – Ousting is not on

1873 – Watson v Arnold – the type B party wall

1875 – Public Health act – DPCs, the structure of buildings, ensuring stability and prevention of fires, the drainage and provision of air space around buildings, to ensure health considerations Model By Laws consolidate Building Control

1878 – Bank of S America v Stokes – Suspension of common law rights

1879 – Knight v Pursell - Rights

1880 – Watson v Gray – The four definitions of the party wall

1883 – Hughes v Percival – Reciprocal duties – duty of care, duty to avoid nuisance, duty to minimise impact, a supervised workforce, expeditious undertaking,

1890 – Williams v Ball – the type a Party Wall

1894 – London Building Act

1905 – Model Bye Laws extended by parliament

1907 – Bennett v Harrods – The Party Wall Award and its construction

1908 – Jones v Pritchard – use of flue passing through AOs property

1915 – Hobbs etc. v Grover – sufficiency of party wall notices

1917 - Selby v Whitebread - the party wall surveyors are charged with facilitating the building owner's rights and safeguarding the interests of the building owner via Award and party wall surveys aka schedule of conditions

1917 – Selby v Whitebread – addendum awards

1925 – Law of Property Act – severed party walls vertically, fabric and construction rights

1925 – Public Health Act

1936 – Public Health Act – British Standards as compliance indicator, Singe Model – voluntary (adoptive) not mandatory

1930 – London Building Act Contains the first party wall act

1939 – London Building Act – contains the amended party wall act

1940 - Bond v Nottingham – Easements but with no obligation to maintain

1945 – Water Act

1959 – Rights of light

1959 – Town and country planning

1961 – Public Health Act

1965/1966 – Building Regulations – mandatory (paid out of rates) – Repealed local acts and gave power to minister to make building regs

1983 – Marchant v Capital – A properly constituted party wall tribunal’s award will not be interfered with by the courts

1984 – The Building Act – consolidated

1993 – Lehmann v Herman – all owners must serve notices

1996 – Party Wall Act – the suspension of common law rights

1997 Louis v Sadiq – Lawful works avoid liabilities

2000 etc. – Building Regulations

2001 – Rees v Skerett – weathering2001 – Gyle Thompson v Wall St Properties – legal constitution of tribunal (the two surveyors)2010 - Kaye V Lawrence - don’t place your trust in thespians bearing gifts

2011 - Jones v Kannev - Don’t become a party wall surveyor unless you know what you are doing

Electronic Communications - The Party Wall etc. Act 1996 (Electronic Communications) Order 2016 amends Section 15 and allows with the permission of the individual owners the serving of documents by electronic means. This will reduce the cost to the Building Owner and should be encouraged. Add the following to all Letters of appointment, "I am content for the electronic transmission of notices and documents under the Party Wall etc. Act 1996"

 

Guide to the Party Wall Act

New Build on line of Junction when not already built upon: 1

Recommended 1

WORKS TO OR AFFECTING PARTY WALLS/PARTY STRUCTURES 1

Recommended 1

Adjacent excavation and construction 2

Recommended 2

Rights 2

Rights of entry. 2

Easements 2

Resolution of disputes 2

Expenses 3

Offences. 3

Exceptions 3

Interpretations 3

Adjoining  Owner 3

Building Owner 3

Foundation 3

Owner 3

Party Fence Wall 3

Party Structure 3

Part Wall a 3

Party Wall b 4

Special foundations 4

Surveyor 4

Recommended 4

Introduction

This is a brief guide to the party wall act by Bruce Spenser MSc MCIOB intended for owners, students and those aspiring to be Party Wall Surveyors – It is not intended to be relied upon in a legal context and should not be.

The Party Wall Act is a reflection of the great legal system we have, its history, the way it evolves,  the rights inherent and the responsibilities that come with those rights – in a civilised country we must not just tolerate the rights of others we must respect those rights and uphold them.

New Build on line of Junction when not already built upon:

Serve Section 1 notices one month before you wish to build a garden wall or party wall

If you receive a Section 1 Notice you may agree to the building of the wall in writing or not and if not the wall cannot be built but the foundations can be placed below your land.

If you agree to the build it will be positioned as both owners agree and the person who built the wall (building owner) may charge the affected owner (adjoining owner) a reasonable sum if he uses the wall.

The building owner will be responsible for any damages his work causes.

The act states when and how a dispute under the act and that it should be settled as per S10 – see below.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB or MRICS) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB or MRIC) – do not appoint non-chartered people especially if they use fraudulent suffixes.

WORKS TO OR AFFECTING PARTY WALLS/PARTY STRUCTURES

Subject to serving a valid notice on the adjoining owner two months before the building owner may carry out works which affect a party wall i.e.

·        Underpin, thicken, raise, make good, repair, demolish, rebuild, cut into or away from etc.

The building owner will be required to reasonably protect the use of the adjoining owner and will be responsible for any damages his work causes

The act allows that two owners may agree works between them and for the adjoining owner to serve counter notices etc.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB or MRICS) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB or MRIC) – do not appoint non-chartered people especially if they use fraudulent suffixes.

Adjacent excavation and construction

If the building owner wishes to carry out excavations which may affect the adjoining owner’s property (as specified within the act) he must serve valid notices.

The adjoining owner has rights to protect his property.

The building owner is responsible for any damages his works cause.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB or MRICS) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB or MRIC) – do not appoint non-chartered people especially if they use fraudulent suffixes.

Rights

The act, very importantly, give rights to both owners which are subject to responsibilites:

Responsibilites - the owner wishing to exercise the rights:

·        must serve the appropriate valid notice in order to excercise the rights afforded by the act - these right suspend common law

·        must not cause unnecessary inconvenience

·        must compensate for damage and loss

·        must protect the adjoining owner’s property

·        requires the permission of the adjoining owner to place reinforced foundations on his land

·        must comply with statutory requirements

·        must comply with the drawings etc. unless agreed otherwise

·        must comply with the requirements of the act

Rights of entry.  

      Subject to serving a valid notice a building owner has rights of entry:

·        May remove furniture and fittings etc.

·        May break in if accompanied by a constable

·        Emergency access rights

Both surveyors have rights of entry as per the act subject to serving notices

Easements

The act does not interfere with rights of light, easements or third party rights

Resolution of disputes

Where a dispute arises following the serving of notices or has deemed to have arisen:

·        The owners shall appoint an agreed surveyor or one surveyor each

The two surveyors must then appoint a third surveyor and it is recommend that this surveyor is a Chartered Construction professional and additionally a Member of the Chartered Institute of Arbitrators. 

The surveyors will then settle the matter with an award as per Section 10 of the act.

 The award may determine:

·        the right to execute any work;

·        the time and manner of executing any work; and

·        any other matter arising out of or incidental to the dispute including the costs of making the award

·        Costs

The award has to be served on the owners and may be served, with the owner’s permission, electronically

The award is conclusive unless successfully challenged in a county court within fourteen days.

Expenses

Expenses are:

·        the responsibility of the Building Owner

·        if disputed settled by the award.

·        Shared if allowed by the act

Offences.

The act allows fines for various refusals by owners

Exceptions

Various Temples and the Crown etc.

Interpretations

Adjoining Owner – The affected owner as per the act

Building Owner – owner desirous of exercising rights

Foundation solid ground or artificially formed support

Owner

·        Recipient of rent or profits

·        In possession of land (not mortgagee)

·        Tenant from year to year

·        Tenant at will

·        Purchaser of an interest in land

Party Fence Wall – garden wall on line of boundary

Party Structure – Party Wall, floor, wall or other partition which separates flats etc.

Part Wall a – Wall which separates buildings and stand on land of different owners.

Party Wall b – not as a above but still separates buildings

Special foundations – reinforced foundations

Surveyor – cannot be the building owner or adjoining owner but should be a Chartered Construction professional (MCIOB, MIRCS) or will be negligent or fall foul of consumer regulations etc.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB or MRICS) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB or MRIC) – do not appoint non-chartered people especially if they use fraudulent suffixes

 

Injunctions - If works are started which should have been the subject of a party wall notice the adjoining owner may consider an injunction whilst the Building Owner correctly serves notices.

You should contact a lawyer - you are on very strong ground (unlike your party wall).  The case of Udal v Dutton 2007 fully supports an injunction to stop the works pending following the requirements of the act.  You will need to demonstrate three things:

·      that there is a serious issue to be tried

·      that the balance of convenience favours the grant of an injunction

·      that damages would not be an adequate remedy

In Udal v Dutton it was decided that tresspass and wrongful interference with property is a serious issue (and that this was sly destruction)

the protection of the remainder of the wall and to replace on a temporary basis that part of the wall which had been wrongfully demolished is a balance of convenience

Damages would be inadequate as a householder who sees part of their property destroyed without consent is more concerned to preserve their property rights rather than secure damages

Notices - Valid Party Wall Notices must be served by the person who wishes to exercise rights under the act (see rights)

You have a number of options when receiving served notices:  to do nothing, to agree to the building owner's party wall surveyor as the agreed surveyor or to appoint their own Party Wall Surveyor. If they appoint their own party wall surveyor, or if the Building Owner exercise the legal option available to appoint a party wall surveyor on their behalf, there will be two party wall surveyors - these two party wall surveyor should primarily check each other’s credential and authority to act and then should immediately agree a third surveyor.

Party Wall Award - The Party Wall Award is a legal document will be drawn up and agreed by the two Surveyors or the agreed surveyor or any two of them (this includes the third surveyor) which will determine how the works will be carried out.

Payments for works done - If you have raised your parapets for a loft extension/built a Party Wall  and the adjoining owner wants to enclose upon the wall you can claim payment for its use.

Raising Downwards

·        Raising downwards is a contradiction in terms; you can only raise upwards.

·        Previous case law which has no relevance to the Party Wall Act should not be relied upon.

·        The Party Wall Act allows for underpinning and raising a Party Wall

·        Section 7(4) requires the permission of the Adjoining Owner for special foundations

Rights of Adjoining Owners -All statutory, regulatory and common law rights which are not suspended by the act and all rights of the Building Owner if they wish to exercise them.

Rights of Building Owners -

Section 1 Rights

(a) build a party wall or party fence wall on the line of junction

(b) place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.

Section 2 Rights

(a)  to underpin, thicken or raise

(b)  to make good, repair, or demolish and rebuild

 (c) to demolish a partition which separates buildings

(d)  to demolish the  whole  or  part  of  buildings connected by arches or structures over public ways or over passages

(e)  to demolish and re-build a party structure which is of insufficient strength or height

(f)   to cut into a party structure for any purpose

(g)  to cut away any footing or any projecting chimney breast, jamb or flue, or other projection

(h)  to cut away or demolish parts of any overhanging wall or building

(j)   to cut into the wall to insert weatherproofing

(k)  any other necessary works

(l)   to raise, demolish and re-build a party fence wall, or to raise such a wall for use as a party wall, and to demolish a party

(m) reduce, demolish and rebuild, a party wall or party fence wall to stipulated heights

(n) To expose a party wall or party structure hitherto enclosed subject to providing adequate weathering.

Section 6 Rights

(a)  Underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner as far as may be necessary.

(b) Excavate below the Adjoining Owner’s foundations within 3m or 6m

These rights are conditional and should not be exercised without exactly following the requirements of the act.  Lay people should not exercise any of these rights unless via a correctly appointed, qualified and experienced Party Wall Surveyor.

Rights of Entry

Contents

Rights of entry Under the Party Wall Act 1

Who has rights of entry. 1

Who is a Building Owner Under the Act?. 1

In Practice. 1

When Notices have been served. 1

When Notices have not been served. 1

Who has rights of entry

Road Runner LORD JUSTICE CHADWICK - a surveyor appointed under section 10 of the Act has the opportunity and the right to enter upon the premises of both the building owner and the adjoining owner "for the purposes of carrying out the object for which he is appointed or selected” – it is argued that this only applies to the surveyor appointed by the person carrying out the works.  It is further argued that the person carrying out the works is the Building Owner.  These arguments are both incorrect; 

Who is a Building Owner Under the Act?

Section 21 of the act interprets building owner”; “means an owner of land who is desirous of exercising rights under this Act”: Therefore if the adjoining owner wishes to exercise a Section 8 Right of entry they are a Building Owner under the act.

In Practice

When Notices have been served

If a dispute has arisen and works are suspected of commencing (i.e. underpinning) and no award is in place the adjoining owner can serve notice of entry.

When Notices have not been served

If notices have not been served and it is suspected that works subject to the act are being carried out (i.e. underpinning) and the adjoining owner appoints a surveyor who calls upon the Building Owner to appoint a surveyor a dispute is deemed to have arisen. 

The rights then extend to:

8 (1)A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.

8 (2)If the premises are closed, the building owner, his agents and workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises.

Schedule of Conditions - Each adjoining Owner’s buildings should be surveyed and a professional and thorough schedule of conditions should be produced. This ensures that there is a record of the Adjoining Owner’s properties before the works affecting the Party Walls proceed

Security for Expenses - The act allows for Security for expenses before the works proceed - the sum will be paid into an account and not released without the agreement of the surveyor(s)

Third Surveyor - If two surveyors are appointed they must agree a third surveyor who can then be called upon to independently settle the dispute or settle the dispute with either of the two surveyors.

Qualifications - The young, uneducated and inexperienced can be led astray by those seemingly offering easy routes to degree and Chartered status; Join us they say and you can utilise Chartered and Degree post nominal letters after your name "Anyone can be a Party Wall Surveyor"!

But beware when you enter and join this make-believe world of the fantasists; the lack of qualitative and quantitative reasoning will be exposed as worthless opinions as you attempt to put this nonsensical theory into practice. As you skim the surface of reality and remove abstract layers which seem to serve your current situation your positions and confusions will become increasingly absurd.

As you sink deeper into this fairy tale land you may even reach a Don Quixote advanced stage when you can grandly hypothesise that a wall, as allowed by the act, can not only be raised upwards but of course can be raised downwards and with this pronouncement you will be elevated to a Fellow and possibly mounted on your very own Rocinante!

And, of course, once you have succumbed to using one set of Non Privy Council post nominal letters you will find it easier to use more and your ethics may be irretrievably harmed.

However, I would strongly recommend that you take a CIOB or RICS degree and then follow their routes to Chartered Status – it may take a while longer but the foundations, special or not, will ensure your stability.




Regulated By RICS





© Bruce Spenser MSc MCIOB – Building Surveyor, Party Wall Surveyor, Structural Surveyor

         
    Bruce Spenser MSc MCIOB - Party Wall Surveyor - 12 Forburg Road, Stoke Newington, London N16 6HS