Party Wall

Question 1

What is a party wall?

Answer 1

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

Question 2

What is the type A party wall act 96?

Answer 2

Type A
• A wall that stands astride the boundary
of land belonging to two (or more) different
owners (Not necessarily centrally - Foundation footing, e.g. foundation footing over the line of junction)

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

Question 3

What is the type B part wall act 96?

Answer 3

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

Question 4

What is a Party Structure?

Answer 4

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

Question 5

What is a Party Fence Wall?

Answer 5

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

Question 6

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

Answer 6

The Act provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings, that may otherwise constitute trespass or nuisance. Enabling development in situations that could otherwise be difficult.

• 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

Question 7

What work is covered by the Party Wall Act?

Answer 7

• 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

Question 8

What is the line of justice notice?

Answer 8

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)

Question 9

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

Answer 9

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

Question 10

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

Answer 10

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

Question 11

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

Answer 11

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

Question 12

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

Answer 12

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.

Question 13

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

Answer 13

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

Question 14

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?

Answer 14

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))

Question 15

Explain Section 1

Answer 15

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

Question 16

Explain Section 2

Answer 16

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

Question 17

Explain Section 6

Answer 17

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

Question 18

What is the notice of Adjacent Excavation?

Answer 18

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.

Question 19

What are the two types of adjacent excavations?

Answer 19

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

Question 20

What occurs if all of the notices have been handed?

Answer 20

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

Question 21

What happens when a Notice is issued?

Answer 21

• 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

Question 22

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

Answer 22

• 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

Question 23

What is Party Wall Structure notice covered under?

Answer 23

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

Question 24

What does the Party Wall Structure concern?

Answer 24

Generally speaking these are alterations to the party wall itself

Question 25

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

Answer 25

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

Question 26

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

Answer 26

• 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

It is VERY important that you fill in the notice accurately. If the notice is incorrect (for example if you do not date it, or if you do not describe the works in detail) then the notice could be deemed invalid, meaning any appointments or Awards made would be invalid and the process would have to start de novo, which could be a big delay to your works if it’s not brought up until later.

The idea is you need to provide enough information to an adjoining owner to understand how the works may impact them, and whether they feel they need to appoint a surveyor. If you serve a notice just saying ‘we’re excavating within 3m of your property’ that hardly tells them anything. How deep will you be excavating and therefore what’s the likelihood of it impacting them? What are the excavations for? Is it likely underpinning will be required to their building?

Question 27

What is a Party Wall Award?

Answer 27

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

Question 28

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

Answer 28

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

Question 29

Who produces the Party Wall Award?

Answer 29

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

Question 30

What does the Party Wall Award include?

Answer 30

The award describes the proposed works, the timing and manner of the works. They 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
5. Details of the third surveyor (if two surveyors have been appointed).

Question 31

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

Answer 31

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

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

Question 32

Why would a method statement be required?

Answer 32

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

Question 33

How does the Party Wall Award affect the owners?

Answer 33

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

Question 34

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

Answer 34

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

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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

Question 37

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

Answer 37

• 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

Question 38

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

Answer 38

• 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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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

Question 41

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

Answer 41

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

Question 42

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

Answer 42

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

Question 43

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

Answer 43

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

Question 44

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

Answer 44

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 AO can either request they are made good by the building owner’s contractors, or request payment in lieu to get it done themselves. A sum must then be agreed to cover the cost of this.

The surveyors will determine the amount of compensation

Question 45

What is the role of a Third Surveyor?

Answer 45

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

Question 46

How is a Third Surveyor appointed?

Answer 46

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

Question 47

What are reasons for having to choose another Third Surveyor?

Answer 47

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,

Question 48

How is a Third Surveyor beneficial?

Answer 48

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

Question 49

How does the Party Wall Act define a Surveyor?

Answer 49

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

Question 50

Can a Surveyor dismiss their duty for either owner?

Answer 50

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

Question 51

Why and how is a Surveyor appointed?

Answer 51

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.

Question 52

What must the appointment letter include?

Answer 52

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

Question 53

Is a letter of appointment required for a third surveyor?

Answer 53

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

Question 54

What is a schedule of condition?

Answer 54

A schedule showing the condition of the Adjoining Owners’ properties

Question 55

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

Answer 55

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

Question 56

How detailed is the schedule of condition?

Answer 56

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

Question 57

What can be included in the schedule of condition?

Answer 57

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

Question 58

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

Answer 58

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

Question 59

Reasons for having to appoint a Surveyor?

Answer 59

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.

Question 60

Can both parties share a surveyor?

Answer 60

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

Question 61

How is a notice served?

Answer 61

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.

Question 62

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

Answer 62

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

Question 63

Who needs a copy of the notice or any replies?

Answer 63

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

Question 64

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

Answer 64

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

Question 65

Name the common reasons for disputes

Answer 65

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

Question 66

What is the common reason for these disputes?

Answer 66

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

Question 67

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

Answer 67

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.

Question 68

How does the Party Wall Act benefit the Building Owner?

Answer 68

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)

Question 69

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

Answer 69

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)

Question 70

What guidance does the RICS give on Party Walls?

Answer 70

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

Question 71

When does notice need to be served?

Answer 71

There are 3 sections of the Act which refer to different works. You need to serve notice if your works fall under any of these 3 sections. Often your works may fall under multiple sections in which case multiple notices will need to be served.

Question 72

When should notices be served?

Answer 72

When serving notice, the statutory notice period is either 1 or 2 months before you start the works depending on the section you’re referring to.

Section 1 and 6: 1 month before

Section 2: 2 months before

I would always advise serving notice at least 3 months before you want to start the works however to give time for the Award agreement process.

Question 73

How does the Party Wall process work?

Answer 73

Adjoining Owner consents - Great! No award process required.

Adjoining Owner does not respond - 10 day letter is sent after 14 days. Following no response after 10 days - deemed dissent and surveyor is appointed.

Adjoining Owner dissents, choosing the agreed surveyor - Award process commences.

Adjoining Owner dissents, choosing their own surveyor - Award process commences.

Question 74

Why does the Building Owner need to appoint a surveyor for and on behalf of the Adjoining Owner following no response.

Answer 74

This is to protect adjoining owners who potentially are away or did not receive the notice for any reason, and ensure they are properly represented, but also to ensure that the process keeps driving forward in case adjoining owners think they can delay the works by not responding.

Question 75

Are Building Owners and Adjoining Owners considered to be a Surveyor’s clients?

Answer 75

We are completely impartial as we are acting on behalf of the act, not a client. This is one of the reasons we refer to ‘building owner’s’ and ‘adjoining owners’ rather than ‘client’ to ensure that impartiality is clear. This is commonly misunderstood!

Question 76

Give an example of recent case law.

Answer 76

Lea Valley Developments Ltd v Derbyshire [2017] EWHC B22 (TCC)

The claimant’s position is that in the circumstances of this case and for the purposes of s.7(2) of the Act, the correct measure of compensation in respect of the damage suffered by the defendant is by reference to the diminution in value of the property, that is between £488,000 and £1 million. The defendant’s position is that the correct measure of compensation is by reference to the cost of demolishing and rebuilding the property, which on its case is some £1.952 million.

The court held that, it did have jurisdiction to identify the methodology to be adopted by surveyors in assessing compensation. However, it was not for the courts to determine the amount of compensation payable. The court will identify the appropriate test to be adopted by the surveyors, in order that surveys could move forward and make a decision themselves.

Question 77

What are the benefits of the Act?

Answer 77

Access - You can use the act to gain access to a neighbour’s property to undertake any works under the Act. The details of the access have to be agreed in the Award and reasonable notice must be given beforehand

Maintain good neighbourly relationship - Its dispute resolution helps to maintain a good relationship with your neighbour

Maximise space - Because you can build up to the line of junction as you have access to do this, or even across the boundary line if the neighbour consents, and also removal of projections you can maximise the space of your land rather than having to design to ensure you’re away from the neighbours property

Resolving damage - It is useful to resolve any damage issues following completion of the works.

Question 78

What are the mechanisms of the act with regards to ‘Changes of Ownership’?

Answer 78

If the Building Owner changes the notices all have to be restarted from the beginning, if the adjoining owner changes then they inherit the award and surveyor of the previous owner.

Question 79

What are the mechanisms of the act with regards to ‘Counter Notices S4(1)’?

Answer 79

This is where an adjoining owner, after having been served notice can request from the building owner a counter notice requiring additional works. For example special foundations being placed at a greater depth or to build in a flue or recesses into the wall. The cost of this is agreed between the surveyors. This must be served within 1 month of the notice, and it ONLY applies to party structure notices.

Question 80

What are the mechanisms of the act with regards to ‘Ex Parte Awards s10 (6) & (7)’?

Answer 80

Ex Parte Awards are used when the other surveyor is not responding or expediting the process. The party wall act has mechanisms that constantly drive it forward and this is one for dealing with surveyors that are not meaningfully responding. There are 2 sections under which you can serve ex parte awards – if a surveyor refuses to act effectively, or if a surveyor neglects to act effectively. It’s best to avoid these Awards if at all possible as they are often appealed.

Question 81

What are the mechanisms of the act with regards to ‘Security for Expenses S12’?

Answer 81

Security for expenses is security that can be requested from the Building Owner prior to works being undertaken. Security for expenses is when before the works begin and the Award is agreed, the Adjoining Owner asks for security (usually in the form of money) should they be in a position during the works where they may be exposed to having to pay for expensive reconstruction works.

This is usually requested when there is a big basement dig next door and you’re concerned that the BO might go bust, leave a massive hole on site which would be dangerous to the AO and incur them costs.

The security sum will usually be the amount it would cost to put the AO back into a safe position permanently, but only the cheapest cost. In this scenario it would therefore be cheapest to fill in the hole.

It does not necessarily have to be money, if the BO can’t afford it for example the security can be their car or other possession. The Act is not specific.

It is only the Adjoining Owner who can request this, and not the surveyor. There is a bit of a divide on this with surveyors on whether you should advise the AO to request it or not, in my opinion they won’t know about the Act or that this is a provision, so you should raise it as an option, but only if appropriate.

Question 82

How can you get access to someone else’s land?

Answer 82

If your works fall under the party wall Act, then you can get access to do these works under the Act, and this access is agreed in the Award. The benefit of using the Act is that this access can be enforced if necessary, however you can only get access for those works under the Act and nothing more. For example, say you got access onto the adjoining owners land to put up protective hoarding and screens as you were removing some projections from their wall, that would be fine. But if those screens stayed up whilst you demolished your building which is set back from the boundary and not notifiable, that wouldn’t be allowed. You would need a separate agreement for that.

Question 83

How else can you access property?

Answer 83

Access to Neighbouring Land Act 1992

Access Agreements

Question 84

Explain section 7(2) of the Act

Answer 84

Section 7(2) provides that: “The building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act.”

Question 85

How is the cost of repair generally determined?

Answer 85

One of the ways the cost can be determined is to get quotes for the repair work from three contractors sourced by the party wall surveyor(s). The party wall surveyor(s) then selects the most appropriate contractor for the job and arranges to get the funds to the adjoining owner, enabling them to get the damage corrected.

Alternatively, The Royal Institute of Chartered Surveyors (RICS) recommends the use of a cost guide to determine repair costs. The Building Cost Information Service of BICS is the industry standard cost guide that most party wall surveyors refer to. Once the cost is determined, the building owner is notified to transfer the amount to the adjoining owner, allowing them to commence repair work.

Question 86

What happens if the adjoining owner reports damage to his or her property because of the building work?

Answer 86

The surveyor should refer to the Act to determine the precise situations in which compensation and making good are applicable. The building owner is responsible for making good damage caused by the notifiable works under sections 2(2)(a), (e), (f), (g), (h) and (j). Alternatively, the adjoining owner can opt for payment in lieu of making good under section 11(8). The remedy for damage caused under any other section of the Act
is compensation. All compensation is under section 7(2) and should be paid directly to the adjoining owner or occupier. Payments in lieu of making good under section 11(8) should be paid directly to the adjoining owner.

Question 87

Is a Party Wall Award necessary for both parties to benefit from the rights of the Act?

Answer 87

No, all that is necessary is the service of a notice. By consenting to a notice you will still have the protection given by the Party Wall Act.

In the case of minor domestic works (i.e. Most loft conversions, internal alterations and simple rear extensions or excavation that is remote or very isolated) an Award does not provide additional protection. In these cases we believe that it is preferable for a neighbour who has received a notice to consent. This is what the Government recommend in their Advisory Document (Section 12).

If you have received a notice for minor work and your neighbour demonstrates to you that the work will be properly designed and executed and subject to the Building Regulations you should consider consenting subject to a prior Schedule of Condition* of your property. This is really the most important element as it is the tool which is used to judge if any damage has been caused.

If following an agreement any dispute subsequently arises in relation to the works then the Adjoining Owner can still formally appoint a surveyor and that surveyor or two surveyors can still resolve the matter by a Party Wall Award so by consenting from the start neighbours are not ‘signing away their rights’

Question 88

When would you insist on the preparation of an Award?

Answer 88

Where complex works are involved, particularly works including underpinning a Party Wall or deep adjacent excavation, there is a significant risk to adjoining property and in these cases, we believe that it is in the best interests of Adjoining Owners to dissent to notices and appoint a Party Wall Surveyor who will be able to bring expert knowledge to the situation.

Question 89

How can design changes be managed?

Answer 89

Where there are changes to the design of works included in the award, they must either be agreed by the parties as required by section 7(5) of the Act or, in the event of disagreement between them, be referred to the surveyors to be determined by a further award. This work may require a further notice.

Surveyors can obtain their appointing owner’s authority to agree such changes on their behalf. In circumstances where the surveyors are able to reach agreement, it is then recorded in an exchange of letters between them. In this case, there is no requirement for a further award, even for extensive changes in design.

Question 90

How should loss which can be anticipated be dealt with?

Answer 90

Where loss can be anticipated in advance of the work, provision should be made within the award. Such compensation is only available for justifiable and calculable losses, and not for mere inconvenience. For example, if car parking is impeded because of
scaffolding, it may be justifiable to require the building owner to pay the cost of providing parking elsewhere. Compensation for loss in this regard can be claimed under section 7 (2) of the Act.

Question 91

What does section 7 (2) provide?

Answer 91

The Act provides for the payment of compensation under section 7(2); such compensation is payable in respect of any loss or damage suffered by the adjoining
owner or occupier that has been caused by works executed in pursuance of the Act by the building owner. This does not necessarily relate simply to physical damage.

Question 92

How is compensation managed for section 2(2)(e) works?

Answer 92

Where a building is laid open under section 2(2)(e), the surveyors should also consider whether it is appropriate for the adjoining owners or occupiers to receive a payment in respect of inconvenience and disturbance under section 11(6). If so, a fair allowance
should be assessed for this in advance of the work and included in the award provisions.

Question 93

What does section 11 of the Act cover?

Answer 93

Section 11 of the Act sets out guidelines on the responsibility of the owners for the expenses of works. In most cases, the expenses of works under the Act shall be defrayed by the building owner, because the building owner who has organised the works will benefit from them, while the adjoining owner usually will not.

Question 94

If someone builds a wall under section 1 of the act, and the neighbour builds onto it - e.g. building a lean-to against it. Would the neighbour (now the BO) be liable for any compensation?

Answer 94

When improvements or extensions to the adjoining owner’s property have been carried out and the building owner subsequently makes use of
those works. In such case, the building owner may have a liability to make a payment to the current adjoining owner (see section 11(11) of the Act). This is calculated as a due proportion of the costs and expense of the original works that are being utilised at
present-day costs.

Question 95

Where a building owner proposes to reduce the height of a party wall or party fence wall under section 2(2)(m) (to no less than 2m high), the adjoining owner can serve a counternotice within one month of the original notice, requesting the existing height of the wall to be maintained. What are the potential issues for the AO?

Answer 95

The adjoining owner has to pay a due proportion of the cost of retaining that wall, including the full cost of its subsequent maintenance, exceeding what is necessary for the purposes of the building owner.

Question 96

At Over Peover, why and how were you appointed?

Answer 96

Section 3 notice was served by BO for section 2 works to underpin a type A party wall between a pair of semi-detached properties.

AO dissented to the works and on the appointment of an agreed surveyor - therefore the dispute needed to be settled in accordance with s.10 of the Act.

The appointment must be made in writing and directly to the individual surveyor appointed - NOT THE FIRM!!

Upon appointment, I agreed on the appointment of a third surveyor using P&T member book.

Question 97

What did you advise on what was required in the letter of appointment?

Answer 97

Use templates provided by RICS Guidance note - Party Wall Legislation and Procedure:

Name of individual Surveyor - NOT THE FIRM!!

Address of AO and BO properties

Reference to the notice served

A Statement - ‘I/We, hereby appoint you ….. in accordance with s.10 of the Act as my/our surveyor and authorise you to sign, serve, receive and reply to any further notices in connection with the works proposed at the above address.

Signed and Dated

Question 98

What advice did you you give to the adjoining owner in relation to protection provided by the Act?

Answer 98

The Act provides compensation under section 7(2). Such compensation is payable in respect of any loss or damage suffered by the AO caused by works executed in pursuance of the Act.

In addition, an express provision made in the award.

Question 99

Run through how repairs were negotiated?

Answer 99

Dampness was prevalent in the Living Room following completion of the works. The adjoining owner claimed this was caused by the works undertaken pursuant to the Act as well as decorative repairs (HL cracks).

Agreed with the Building Owners Surveyor on the repairs required:

Dampness caused by eroded pointing to AO rear elevation and leaky gutter, as well as a lack of a vertical DPC between the rear party fence wall (Bridging). As this was a matter affecting both parties, proposed repair of Party Fence Wall undertaken by both parties 50/50 split. But AO responsible for eroded pointing and gutter.

Various Decorative cracks had deemed to have emerged following works, and BO surveyor agreed to undertake repairs.

Question 100

What advice did you give in relation to options for making good damage?

Answer 100

BO responsible for making good damage caused by s.2 works.

Alternatively, the adjoining owner can opt for payment in lieu of making good under s.11(8) of the Act. Payments in lieu for making good (s.11(8)) should be paid directly to the adjoining owner.

Remedy for damage for works under any other section of the act is compensation.

Question 101

How was compensation calculated?

Answer 101

The appointed surveyors will prepare a schedule of repairs and seek competitive quotes for the remedial work. A reasonable sum for compensation is derived by the surveyors analysing those quotes and awarding accordingly. However, as per the wordings of section 7(2), the compensation amount may also cover other kinds of loss. For example, loss of trade, rent and any reduction in the value of the property of the adjoining owner. In such circumstances where a dispute remains between neighbours the party wall surveyors will usually need to call upon the expertise of other professionals such as accountants, property valuation surveyors, solicitors, etc. to establish the extent of financial loss.

Question 102

Can compensation be predetermined?

Answer 102

Where loss can be anticipated in advance of the work, provision should be made within the award. Such compensation is only available for justifiable and calculable losses, and not for mere inconvenience.

For example, if car parking is impeded because of
scaffolding, it may be justifiable to require the building owner to pay the cost of providing
parking elsewhere

Question 103

At Prestbury, what was the purpose of the Schedule of Condition? Is it required under the Statute?

Answer 103

The appointed surveyors should understand the construction, fabric and condition of the adjacent owner’s property before making an award and, if necessary, visit both owners’ properties to understand the consequence of the awarded works.

While not a statutory requirement, a surveyor is recommended to record a schedule of condition of the relevant parts of the adjoining owner’s building and append it to an award.

A schedule should be compiled before any building works start and should include those parts of the adjoining building and grounds that may be affected by the works.

The extent of the schedule depends on the nature and location of the proposed works. It is particularly important to record cracks, their location and, where relevant, their width.

It is often useful to include a simple drawing, as photographs do not always show minor
defects.

The purpose of the schedule is to identify to what extent any claim for damage is valid and, if it is, the extent of the damage.

The schedule should be enough to avoid leaving
significant areas of doubt, which will be a matter for the judgement of the two surveyors.

It is usual for the building owner’s surveyor to prepare any schedule of condition, which should then be checked and agreed by the adjoining owner’s surveyor.

Question 104

What did you agree in your award?

Answer 104

The award contained the limitations on the time and
manner of carrying out works and included a schedule of condition, relevant drawings (including sections) of the notifiable works and method statements.

The hours for noisy works was 8-5 and Saturday working was acceptable.

Protection was required to the front garden, to protect plants

Arrangements and costs to be paid and by whom.

Method statements may be attached for particular operations, e.g. piling.

It is for the surveyors to agree the terms of the award. While the surveyors should consult with their owners in respect of ascertaining specific preferences and/or
requirements, they should not present the draft award to their appointing owners for approval.

Question 105

In relation to the rear Party Fence Wall at Over Peover, how did you advise the AO?

Answer 105

I advised these works would fall outside the existing award and new notices should be served (Section 3) and an award prepared.

I advised on the possibility of defrayed costs as repairing the wall would be mutually beneficial.