A Brief Overview of the Party Wall Act - Bruce Spenser MSc LCGI MCIOB

The Author

History and Background

Common Law

Statutes

The term party wall surveyor

Fees of the Party Wall Surveyor

Selecting your Party Wall Surveyor

Correct Legal Procedures - Appointment of the Party Wall Surveyor

The Adjoining owners

Schedule of Conditions

The Award

Final Inspection and Report

ENGLISH PARTY WALL CASE LAW

A Brief Overview of the Party Wall Act - Bruce Spenser MSc LCGI MCIOB

The Author - Bruce Spenser is a Master of Science in Building Surveying. His degree was awarded from the CIOB and RICS accredited Masters programme of Northumbria University.

History and Background- As London evolved its present density terraced housing was one method of increasing the dwellings per acre. Terraced houses all shared a common wall which came to be known as a party wall. The gardens on these properties would also share a common boundary and the separating fence or wall became known as a party fence wall

Common Law- Under common law there are rights which can be exercised as long as the responsibilities (reciprocal duties) owed are also exercised - this can be thought of as a set of scales which need to be balanced. The person who wishes to exercise Party Wall rights is known as the building owner and the the co-owners are known as the adjoining owners. Under common law the remedy to works which are carried out unlawfully is damages - putting the adjoining owner in the position they would have been prior to the unlawful act - this is generally recompensed by a financial payment, however positive or negative court orders such as injunctions etc can be made.

Statutes- Various statutes were enacted such as the London Acts in order to regulate the emerging needs of Party wall owners based on the head of emerging party wall case law until in 1996 The Party Wall Act was enacted.

The term party wall surveyor is defined in the Act as any person who is not a party to the works. Your Party Wall Surveyor should have a thorough knowledge of law, construction and party wall procedures.  Your Party Wall Surveyor should have a minimum of a BSc in Building Surveying and be a member of the CIOB, RICS, RIBA, ABE, ISE etc. They should also have in place full professional indemnity insurance where their party wall work is declared. 

Fees of the Party Wall Suveyor-It is appropriate at this stage to look to the fees of a party wall surveyor who is qualified as the author considers. The author, obviously deals with many other party wall surveyors and considers the average fee for works such as basement conversions, loft extensions, inserting steels into party wall, extensions alongside or on party fence walls, adjacent excavations etc, where there is one adjoining owner who is happy for the work to proceed as long as his interests are protected and based on the Party Wall Surveyor providing the following professional services:

· Advice

· Site Visit

· Serving of notices

· Schedule of Conditions

· Award

Should be in the region of £1000 for the Building Owner’s surveyor and £1450 for the Adjoining Owner’s surveyor. However as in all industries there are extremes and the buyer should beware!!!! The term, "caveat emptor" comes to mind. The hourly charge of surveyors swings between £300 and £100 at the extremes and the average for the Adjoining Owner is £175 per hour (research Spenser 2011) - the Building Owner's Surveyor will generally be lower as they generally tender under market rates to secure the work. There is one case law where the judge determined that £160 per hour (2007) was not an unreasonable fee.  In Andrew Dust v Others (2005) the judge stated, “The complaint is that he made a three course banquet out of what should have been a snack and spent many more hours doing the work than was reasonably necessary” and reduced the fees accordingly.

Selecting your Party Wall Surveyor- The first thing that should happen when you are considering having any work carried out which is subject to the Party Wall Act is for you to 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 - you should be looking for experience, qualifications, professional membership, professional indemnity insurance, cost and an underlying ethical and moral code which in the author’s experience can be had for approximately £100 per hour - why pay more??

Correct Legal Procedures - Appointment of the Party Wall Surveyor- Your chosen party wall surveyor should produce a legal document of appointment. Once you have correctly appointed your party wall surveyor he should visit site and receive all documentation etc. 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.

The Adjoining ownersthen have a number of options, to do nothing, to agree to your 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 your party wall surveyor 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.

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

The Award- This legal document will be drawn up and agreed by the two Surveyors which will determine how the works will be carried out.

Final Inspection and Report- The Surveyor (s) will carry out an inspection after the completion of the works and make a report which will include reference to the Building Control Completion Certificate

ENGLISH PARTY WALL 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

A brief chronology of the history of Party Wall Legislation and some interesting Case Law:

1212 – Thatched roofs banned after a major fire

1666 – Great Fire of London

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 Schedule of Condtions

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 – weathering

2001 – Gyle Thompson v Wall St Properties – legal constitution of tribunal (the two surveyors)

2010 - Kaye v Lawrence - Don't place your trust in thesbians bearing gifts