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APC Building Surveying Jack > Party wall > Flashcards

Party wall Flashcards

1
Q

what is a party wall

A

a party wall divides the buildings of two owners with the boundary between ownerships, usually, but not always positioned at the centre of the wall.

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2
Q

What is the type A party wall act 96?

A

Type A
• A wall that stands astride the boundary
of land belonging to two (or more) different
owners

• Examples include walls separating terraced
or semi-detached houses or walls that form
the boundary between two gardens, known
as a ‘party fence wall’

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3
Q

What is the type B part wall act 96?

A

Type B

  • A wall that stands wholly on one owner’s land, but is used by two (or more) owners to separate their buildings
  • Examples include where one neighbour has a structure that leans against a wall that is owned by the other neighbour. Only the part of the wall that is enclosed by the lean-to is a Party Wall
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4
Q

What is a Party Structure?

A

The Act also uses the expression ‘party structure’. This term encompasses dividing structures such as floors or other partition

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5
Q

What is a Party Fence Wall?

A

A ‘party fence wall’ is not part of a building. It stands
astride the boundary line between lands of different
owners and is used to separate those lands. Wooden fences, or even fences with concrete posts, are not party fence walls

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6
Q

What is the Party Wall Act 96 and what does it provide?

A

• It provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and
excavations near neighbouring buildings

  • It is based on some tried and tested provisions of the London Building Acts
  • Anyone intending to carry out work (anywhere in England and Wales) of the kinds described in the Act must give Adjoining Owners notice of their intentions
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7
Q

What work is covered by the Party Wall Act?

A

• Work to existing party walls, such as demolition, rebuilding, underpinning, cutting into a party wall to take a load bearing beam (for example during a loft
conversion), reducing or increasing the height of the wall or inserting a damp proof course
• Work to some boundary walls, known as ‘party fence walls’
• New building up to or astride the boundary line
• Excavations and foundations within 3 or 6
metres and to a greater depth than the
foundations of neighbour’s buildings

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8
Q

What is the line of justice notice?

A

This is the least common of the notices and is served under section 1 of the Act and again covers two distinct tasks:
• The construction of a new wall adjacent to a boundary (built up to the boundary line but does not cross it)

• The construction of a new wall astride a boundary
(runs across two pieces of land)

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9
Q

When must the Building Owner give a notice of Adjacent Excavations and who did they give it to?

A

The Building Owner must give a notice period of ONE month to the adjoining owner from the date of the notice, to starting works

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10
Q

What happens if the adjoining owner does not to respond to a section 1 notice?

A

If the adjoining owner does not respond to a section 1 notice relating to a neighbour’s intentions to build a new wall up to the boundary, the work can commence when the notice period has expired

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11
Q

Can the Building Owner place any necessary footings and foundations under the adjoining owner’s land?

A

The Building Owner may place any necessary footings and foundations (with the exception of reinforced foundations known as ‘special foundations’) under the adjoining owner’s land

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12
Q

What is only type of party wall the adjoining owner can prevent?

A

The building of a new wall astride the boundary is the only type of work covered under the Act which the adjoining owner can prevent.

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13
Q

What happens if the adjoining owner does not respond to the in writing within 14 days?

A

If the adjoining owner does not respond in writing within 14 days the building owner will have to build the new wall entirely on his side of the boundary line

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14
Q

Why might the Building Owner be able carry out Section 2 works without having to serve the relevant notice with the consent in writing of adjoining owners and adjoining occupiers?

A

Don’t know the answer

The exception to this generalisation is that section 2 works may be carried out without service of the relevant notice with the consent in writing of the adjoining owners and adjoining occupiers (section 3(3)(b))

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15
Q

Explain Section 1

A

works (dealing with new building on or up to the line of junction)

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16
Q

Explain Section 2

A

works (covering an assortment of works relating to existing structures)

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17
Q

Explain Section 6

A

works (relating to excavation and/or construction near to structures on an adjoining owner’s land)

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18
Q

What is the notice of Adjacent Excavation?

A

Notices of Adjacent Excavation are concerned with works notifiable under section 6 of the Act

The notice must contain the same information as a Party Structure Notice

The notice must contain the plans and sections showing the proposed excavation and a block
plan showing the location of the new building or structure.

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19
Q

What are the two types of adjacent excavations?

A

Excavating within 3 metres of your neighbour’s building and to a depth lower than the bottom of their foundations

Excavating within 6 metres of a neighbour’s building, if any part of that excavation intersects with a plane drawn downwards at an angle of 45 degrees from
the bottom of their foundations, taken at a line level with the face of their external wall

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20
Q

What occurs if all of the notices have been handed?

A

With all types of notices the adjoining owner has 14 days to respond before they are automatically deemed to be ‘in dispute’ and obliged to appoint a Party Wall Surveyor

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21
Q

What happens when a Notice is issued?

A
  • An Adjoining Owner has 14 days to carefully consider how best to safeguard their interests
  • If they do not respond or appoint a Surveyor within this time period a further 10 day notice may be served, giving a further opportunity for a response
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22
Q

What 3 options are available to the adjoining owner when a Notice is handed?

A
  • Consent to the Notice – in which case Building Owner will be able to proceed with their proposed works
  • Dissent to the Notice and appoint their own Surveyor: the Adjoining Owner’s appointed Surveyor will proceed with the Building Owner’s Surveyor to prepare a Party Wall Award
  • Dissent to the Notice and concur in the appointment of an Agreed Surveyor - the Adjoining Surveyor may be happy for a single Surveyor to represent both parties’ interests, he/she will act impartially to draw up a Party Wall Award
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23
Q

What is Party Wall Structure notice covered under?

A

Party Structure notices are covered under section 3 of the Act although they cover works notifiable under section 2 (2) (a) to (n)

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24
Q

What does the Party Wall Structure concern?

A

Generally speaking these are alterations to the party wall itself

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25
Q

What is the time limit the adjoining owner has to respond the Building Owner?

A

The Building Owner must give a notice period of TWO months to the adjoining owner from the date of the notice, to starting works

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26
Q

What must be included in the Party Wall Structure notice for the notice to be valid?

A 
• Name and address of the building owner
• Nature and particulars of the proposed
work
• Adjoining owners right to appoint an ‘Agreed Surveyor’ or an
independent Surveyor of their choice
• Acknowledgement Form
• Date on which the work will begin
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27
Q

What is a Party Wall Award?

A

An Award (sometimes referred to as an agreement) is a legal binding document authorising the execution of building work pursuant to the Act, but primarily safeguards Adjoining Owners’ property

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28
Q

How does the Party Wall Award protect the Adjoining Owners’ property?

A
  1. Ensuring that all reasonable and necessary measures are taken to protect their property from foreseeable damage
  2. Preventing unnecessary inconvenience
  3. Being compensated for any loss or damage caused by relevant works
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29
Q

Who produces the Party Wall Award?

A

A party wall award must be produced by the agreed surveyor or two of the appointed surveyors.

30
Q

What does the Party Wall Award include?

A

The award will usually include

  1. relevant drawings of the notifiable works
  2. method statements
  3. a schedule of condition
  4. any limitations on the time and manner of carrying out the work
31
Q

What would both of the parties Surveyor agree upon in the Party Wall Award?

A

Surveyors will agree the working conditions, such as: 1.hours for noisy works

  1. whether weekend working is acceptable
  2. protection required to any exposed party walls
  3. security for expenses arrangements and fees to be paid and by whom
32
Q

Why would a method statement be required?

A

Method statements may be attached for a particular operation such as demolition or details of access onto the adjoining owner’s land

33
Q

How does the Party Wall Award affect the owners?

A

The award should make express provision for making good damage caused by works under the Act

34
Q

Could the Party Wall Award be used later in the future?

A

The award is also potentially useful as a record for the future and should attempt to describe the proposed works clearly and succinctly and include any relevant documents

35
Q

Could the Party Wall Award be used later in the future?

A

The award is also potentially useful as a record for the future and should attempt to describe the proposed works clearly and succinctly and include any relevant documents

36
Q

When does the Building Owner pay for the Adjoining owner’s surveyors fees and what is he/she paying for?

A

Adjoining owner’s surveyor’s fees are usually inserted into the award as a lump sum together with an allowance for any interim inspections and for final inspection to recheck the schedule of condition

Additional fees that become necessary, due to changes in design or damage caused to the
adjoining owner’s property, would then be agreed
at that time

37
Q

Why might the Surveyor and Adjoining Owner have the right to earn an addendum award ?

A

• It is usual for surveyors to reserve themselves
the right to make a further addendum award. This
would often apply when there is a material change to the building design during the course of the works.

• An addendum award may also be required to determine compensation in respect of damage caused in order to allow the adjoining owner to recover this from the building owner

38
Q

Why might the Surveyor and Adjoining Owner have the right to earn an addendum award ?

A

• It is usual for surveyors to reserve themselves
the right to make a further addendum award. This
would often apply when there is a material change to the building design during the course of the works.

• An addendum award may also be required to determine compensation in respect of damage caused in order to allow the adjoining owner to recover this from the building owner

39
Q

What if the adjoining owner feels the Part Wall award is inappropriate?

A

The parties have the right to appeal against the award in a County Court within 14 days if they feel that it has
been made improperly

40
Q

Can works still carry on if the adjoining owner appeals against the award?

A

A building owner is not obliged to delay commencing work for 14 days whilst waiting to see if an appeal is lodged although there may be circumstances in which the surveyors impose a 14 day delay, as they are
entitled to do

Similarly, an award made by a third surveyor must either be served on the parties or their appointed surveyors. If served on the surveyors the surveyors must then serve the award immediately on the parties. Again, there is a right of appeal within 14 days

41
Q

How involved are the Surveyors once the Party Wall Award has been established?

A

Following completion of the Party Wall Award there should be little for the appointed surveyors to do

42
Q

How involved is the Building Owners, Surveyor once the Party Wall Award has been established?

A

The building owner’s surveyor will usually keep in contact with the project team to identify any changes to the design of the notifiable works or any programme dates that should be notified to the adjoining owners

43
Q

How involved is the Adjoining Owners, Surveyor once the Party Wall Award has been established?

A

The adjoining owner’s surveyor need do little other than undertake any planned interim inspections and prepare to check the schedule of condition at the end of the work

44
Q

What happens if damage has occurred after the award has been established?

A

Should there be a claim of damage caused to the adjoining owner’s property, this needs to be inspected by the appointed surveyors

The presence of, cause of and appropriate remedy for the damage agreed by the surveyors

The adjoining owner has the right to request compensation fix the damage

The surveyors will determine the amount of compensation

45
Q

What is the role of a Third Surveyor?

A

Either of the surveyors or the parties may call upon the third surveyor to determine disputed matters

The third surveyor can either act with one of the other two surveyors to make the award or, where a specific matter in dispute is referred to him or her, may make his/her own award

The third surveyor will only need to deal with the specific matters in dispute between the appointed surveyors and not, usually, all of the matters arising from the notifiable work

46
Q

How is a Third Surveyor appointed?

A

One of the first duties of the appointed surveyors is to select a third surveyor

The third surveyor does not need to be notified of this appointment as in most cases he/she will not be required

The appointed surveyors should take care to select a third surveyor in whom they have confidence and who has considerable experience in dealing with party wall matters

Ideally they should have a relevant qualification, so popular choices are Building Surveyors and Engineers

It is advisable, before a party appointed surveyor refers a dispute to the third surveyor, to confirm in writing to his/her opposite number the intention to do so

47
Q

What are reasons for having to choose another Third Surveyor?

A
  1. Refusing to act
  2. neglects to act for ten days following a request by 3.either party, either surveyor or third surveyor dies
  3. becomes or deems him/herself incapable of acting,
48
Q

How is a Third Surveyor beneficial?

A

The third surveyor should form a clear idea of the points on which he or she is asked to decide and the main areas of factual or technical dispute.

This will avoid uncertainty as to the scope of the third surveyor’s jurisdiction and to ensure that costs and time required by the referral are minimised

49
Q

How does the Party Wall Act define a Surveyor?

A

The term ‘surveyor’ is defined in the Act as any person who is not a party to the works. This would therefore rule out owners and whoever is overseeing the works on their behalf, be they a Builder or Architect

50
Q

Can a Surveyor dismiss their duty for either owner?

A

Once a Surveyor is appointed under the Act, whether as the ‘agreed surveyor’ or by either owner, they have a duty to act in an entirely impartial manner

Owners often find this part of the Act difficult to accept, as they appointed the Surveyor so they feel that the Surveyor should act solely on their behalf

51
Q

Why and How is a Surveyor appointed?

A

The appointment of a surveyor arises out of a dispute between the two owners, following service of notice

The appointment of a surveyor must be in writing and personal to the surveyor appointed rather than to their firm.

An appointed surveyor must not be a party to the dispute. Someone cannot therefore act as their own surveyor.

52
Q

What must the appointment letter include?

A

The appointment letter must also be signed by all relevant owners, such as a husband and wife where they are joint owners of a house

53
Q

Is a letter of appointment required for a third surveyor?

A

It is not necessary for a letter of appointment to be sent to the third surveyor at the begging of the stage

54
Q

What is a schedule of condition?

A

A schedule showing the condition of the Adjoining Owners’ properties

55
Q

Which properties does the Surveyor take a schedule of condition on and when?

A

It is good practice in practically all cases to prepare a schedule of condition of adjoining properties prior to work commencing and for the schedule of condition to form part of the award document

56
Q

How detailed is the schedule of condition?

A

The schedule of condition should be as detailed as the circumstances require and as clear and accurate as will be needed for a surveyor who has never been to the building to be able to check it at a later date

The schedule will frequently be limited to the rooms adjoining the party wall, but the surveyor should determine in each case whether this is sufficient

57
Q

What can be included in the schedule of condition?

A
  1. Photographs are often useful although they should not be used as a substitute for accurate verbal description
  2. Sketches of crack patterns in ceiling and walls can also be easier to refer to than a complicated description
58
Q

Why might the Building Surveyor need to form a Schedule of Condition before a Party Wall Award is established?

A
  1. Where access to an adjoining owner’s property is difficult, then a party wall award should not necessarily be held up until a schedule of condition is prepared
  2. In this case, party wall awards should reserve the right of the appointed surveyors to have access to prepare the schedule of condition at the appropriate time

Adjoining owners need to be aware that where they do not provide access to prepare a schedule of condition the surveyors will have to make their own decision as to whether damage that is claimed at a later date is
the result of the building owner’s works or not

59
Q

Reasons for having to appoint a Surveyor?

A

A dispute arises when there is an:

  1. Express dissent to a notice
  2. When a party structure notice
  3. Notice of adjacent excavation is not responded to by the adjoining owner within 14 days.
60
Q

Can both parties share a surveyor?

A

They can either agree the appointment of a single surveyor who will be the ‘agreed surveyor’ or each appoint their own separate surveyor

61
Q

How is a notice served?

A

A notice can be served in person or by post.

If the adjoining owner has been spoken to in advance deliver the notice personally to explain the process.

62
Q

What if you don’t know the Adjoining Owners name?

A

If the adjoining building’s owner’s name is not known, the notice can be served on ‘The Owner’ although in this situation it has to be either delivered personally or displayed on a prominent part of the premise

63
Q

Who needs a copy of the notice or any replies?

A

The Local Authority does not need a copy of this notice or any reply

It is essential for the building owners that copies are kept, as well as a photograph of the notice attached to the building for their own protection

64
Q

What happens if work begins before a notice has been issued?

A

An Adjoining Owner has the right to apply to the court for an injunction to be served. This has the effect of ceasing work immediately

This action is only recommended as a last resort, as it can cost both owners tens of thousands of pounds

It is therefore important that the procedures of the Act are correctly adhered to

65
Q

Name the common reasons for disputes

A
  1. A building owner commences building works without even attempting service of the required notice(s) under the Act
  2. Where the service of a notice is required by the Act, but no such notice has been served or properly served, or a notice has been served but is in some way defective
  3. Disputes which arise following the proper service of a valid notice (or counter-notice) pursuant to the Act?
  4. Where an award has been made but one party wishes to challenge the award
  5. Enforcement: the enforcement of awards, the enforcement of rights of entry and the enforcement of the rights of adjoining occupiers

6.Where an attempt has been made by the building owner to serve a notice, but this has not been
done properly, or where the notice itself is, for some reason, invalid

66
Q

What is the common reason for these disputes?

A

The Act has not been properly engaged, and the building owner does not have the protection of the Act

67
Q

Which law has been broken when the works are not covered by the Party Wall Act?

A

Most works not covered by the Act will amount to an infringement of the adjoining owner’s common law rights, either as a trespass or a nuisance

For example, building a new wall straddling the boundary between two properties, or raising the full thickness of a party wall which is wholly or partly on an adjoining owner’s land.

68
Q

How does the Party Wall Act benefit the Building Owner?

A

When the Act is properly engaged, it enables the building owner to override the adjoining owner’s strict common law rights in order to carry out the relevant work.
See Louis v Sadiq (1997)

69
Q

What risk does the Building Owner have if the Act has not been engaged?

A

When the Act has not been properly engaged, the building owner does not have this protection, and may be at risk of an action by the adjoining owner (usually in trespass or nuisance)

70
Q

What guidance does the RICS give on Party Walls?

A

Guidance on the Party Wall etc. Act 1996 is provided in the RICS guidance note Party Wall Legislation and Procedure (5th edition revised)

The guidance note gives advice to surveyors acting for clients in the early stages of party wall procedure and those appointed to administer the Act’s dispute
resolution mechanism

APC Building Surveying Jack (12 decks)

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