Party Wall Procedures – A Brief Explanation

Introduction

Primarily, the Act lays down the procedures and requirements including the resolution of disputes arising from owners of land or buildings proposing to carry out building works that, by definition, affect the land or buildings of any adjoining owner.

Work covered by the Act

The principal categories are:
•works being carried out which physically affects the party wall between two properties;
•works physically or indirectly affecting an adjoining building;
•excavations and/or building works that could effect adjacent properties.

The Building & Adjoining Owner

The Act defines a Building Owner and the Adjoining Owner. The party proposing to carry out any works under the Act is termed “the Building Owner” who is required to give prior notice of proposals to an adjoining leasehold and/or freehold property owner who is termed “the Adjoining Owner”.

Notices and replies

It is always good practice to have an informal friendly chat with Adjoining Owners who may be affected by the proposed work, the aim is to make the situation as amicable as possible and avoid any disputes from arising. The following procedures apply:

1. Following the serving of Notice to carry out work under the Act, (in which M.R. Quirke Building Surveying Services can act as your agent at this point in time giving advice where necessary and submit any notices on your behalf). The Adjoining Owner may agree giving consent to the proposed work. If an amicable agreement is sought then no Surveyors are required to deal with a dispute. However, while it is not a requirement under the Act, it is good practice and beneficial for both owners to instruct a Building Surveyor to carry out a Condition Survey of the properties before work commences, the Survey Report can then be used on completion of the building work to compare and identify any damage which may have been caused due to work being carried out;
2. where the Adjoining Owner disagrees, both sides appoint their own Surveyor to settle all differences and produce an "Award" which lays down such details as the works proposed, drawings, Condition Survey and all conditions precedent;
3. The two Surveyors then appoint an additional surveyor, termed “the Third Surveyor”. The Third Surveyor may be called to act if the two other Surveyors become unable to proceed, or to mediate any differences that arise between them or that might arise between the Building and Adjoining Owners;
4. where the Adjoining Owner disagrees both parties can instead of appointing two surveyors, they can appointment one Surveyor termed “the Agreed Surveyor” who, on his own, produces an Award on the same basis. This method is probably the more preferred method and the least expensive approach. Some would be concerned of favoritism, but under the Act the ‘Agreed Surveyor’ must remain totally impartial having both parties interest in mind;
5. should the Adjoining Owner fail to appoint their own Surveyor, a Surveyor may be appointed on their behalf by the Building Owner and the matter proceeds as item 2 above;

In all normal circumstances, the fees of all/any appointed Surveyors are paid by the Building Owner, although this could be changed by an Award from the Third Surveyor when settling any dispute. The appointed Surveyors may require the services of a secondary appointment for any other specialist advice required, such as a Structural Engineer, whose justifiable fees are also paid by the Building Owner.

In minor matters, such as very small domestic building work, it is quite realistic to simply agree the proposals. In larger projects, or where the Adjoining Owner has any concerns, the matter proceeds to an Award but, in any situation, the Building Owner is required to indemnify the Adjoining Owner against the possibility of damage that might arise either accidentally or by negligence. Such damage is determined by reviewing the original condition (Condition Survey) which is normally scheduled and agreed by the Surveyors at the onset.

Awards

The purpose of an Award is to document the details of the Building Owner’s proposals that have a direct or consequential affect upon the Adjoining Owner’s land or property and to record the conditions and requirements under which the Building Owner must execute those works. The documentation may include drawings, method statements agreeing the procedures by which specific elements of work will be undertaken, the responsibility for costs, payment for use of parts of an Adjoining Owner’s building not previously built against, security for expenses where a guarantee that the work will be properly finished is justifiably required, and numerous other matters including the settlement of differences/disputes.

Upon satisfactory completion of the Building Owner’s works and obligations, the Award, (together with any amendment Awards that might record agreed changes during the course of the works), should be retained with Title papers of the property and should be transferred to any change of Title, thus maintaining a record of the work carried out for both information and surety for any ongoing/future interest, and in the event of any matter that might arise from the works that have been undertaken.

Supervising the agreed work

The appointed Surveyors are not required to supervise or oversee the agreed works: it is the responsibility of the Building Owner to comply with the terms of the Award and the agreed details. However the surveyors will usually make one or two interim inspections during their progress to satisfy themselves that the work is proceeding reasonably or to address any specific matter in the Award or that might subsequently arise. The latter could involve something originally unforeseen or a change to the Building Owner’s proposals, which would result in the appointed Surveyors reviewing and agreeing such proposals, and publishing an Addendum Award involving further fees payable on the same basis as before.

There are many situations which can arise that are less straightforward than the basic procedure set out above. In any event, most are dealt with between the Surveyors by procedures laid down under the Act. However, although not a common occurrence, in extreme cases it can be necessary to settle differences by determination in the Courts.

Further guidance

Contact M.R. Quirke Building Surveying Services for further guidance or click on the Pyramus & Thisbe Logo and go straight to the website for information regarding The Party Wall Act or the ODPMs Website where you can find free literature and comprehensive explanatory booklets.

M.R. Quirke Building Surveying Services provide a friendly service and are only to happy to assist in Party Wall Matters and Party Wall Surveying.