The Royal Institution of Chartered Surveyors (RICS) has recently published a new guidance note (Party Wall Act Legislation and Procedure – 7th Edn.) which provides guidance for RICS members who accept instructions for which the Party Wall etc. Act 1996 (the PWA) may be relevant. The PWA makes provision in respect of party walls, and relating to the excavation and construction in proximity to certain buildings or structures. The new guidance describes the circumstances in which the Act will apply, as well as the procedures to be followed where it does. For anyone planning building works on or close to the boundary of a property, it is essential to seek the advice of a solicitor and also a PWA surveyor who will work with reference to the PWA to prevent and resolve disputes in relation to party walls, boundary walls and excavations near neighbouring buildings.
The first time a solicitor becomes aware of a potential dispute is when work actually begins – either by a client commencing work to their own property or because a neighbour has commenced work on or close to a party structure. In this case, we would always refer to a Party Wall Act surveyor to take the matter forward for and on behalf of the client, whilst retaining a role in case of a possible application to court.
A building owner proposing to start work covered by the PWA must give adjoining owners notice of their intentions in the way set down in the PWA. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the PWA provides a mechanism for resolving disputes. It should be noted that the PWA process is quite separate from obtaining planning permission or building regulations approval for works.
It is useful to try and understand the main types of party wall, which may be:
- a wall that stands on the lands of 2 (or more) owners and forms part of a building – this wall can be part of one building only or separate buildings belonging to different owners;
- a wall that stands on the lands of 2 owners but does not form part of a building, such as a garden wall but not including timber fences;
- a wall that is on one owner’s land but is used by 2 (or more) owners to separate their buildings.
The PWA also uses the expression ‘party structure’. This could be a wall or floor partition or other structure, which separates buildings or parts of buildings in different ownership, such as in flats.
If you or a neighbour are commencing work on or near to a party structure (including knocking down and rebuilding an existing wall or building a new wall on or at the boundary of 2 properties; cutting into a party wall; making a party wall taller, shorter or deeper; removing chimney breasts from a party wall; and digging below the foundation level of a neighbour’s property), it will be important to obtain correct representation from a PWA surveyor, who will have reference to the published guidance. The new guidance note covers (amongst other things) the conduct of the surveyor in advising on the application of the PWA, preparation of what is called a “primary award” and service of this award and challenging the award and if necessary, appeals to the county court.
It is always hoped that any PWA matter can be satisfactorily agreed between the parties, without having to go to court. However, if there is a dispute where work has already commenced, it may be necessary to obtain a court order for an injunction to make sure that the works in question are temporarily stopped. If the court grants an injunction, the costs of applying for the party wall injunction can usually be claimed back from the offending party.
Please do get in touch if you have concerns about any works you or a neighbour are proposing to a party way or structure. Please call 01206 700113 or email [email protected]. Our commercial property and/or litigation team will be able to liaise with a PWA surveyor on your behalf and if necessary, take the matter to court.