Shared Chimneys in a State of Disrepair

by The Party Wall Surveyor

Question 

I have been reading your article on repairing/removing shared chimney stacks on your website which has been very helpful.  You mention that a Party Wall notice is not required when removing a chimney, but is required for the remedial work when removing part of the shared chimney. Is a Party Wall notice required when rebuilding the head of a chimney, and repairing the mid feathers? (There are a few courses in the mid feather missing, and some remaining bricks overhanging.) 

Answer 

The same principle applies to both parts of your question – the repair works are only be notifiable under the Act if they affect the wall dividing your flues from your neighbour’s flues. If you wanted to rebuild the whole of the head that could only be done in agreement with your neighbour. Looking at the condition of the head of the stack, re-building it jointly with your neighbour would be the best option.

Question 

Just so I know, what exactly does the party wall award grant that is different from the schedule of condition and our assurance that if our work caused any new issues then we would rectify it? 

Answer 

A schedule of condition is a written record (usually supported by photographs) of the parts of an adjoining property that are likely to be impacted upon should anything go wrong with a building owner’s works.  It can be referred back either during or following the works should there be a claim for damages against the building owner. 

A party wall award is the document that is produced by appointed surveyors to resolve a dispute between owners where there has been a dissent to the party wall notice(s). An award will generally include a schedule of condition which may be why the two things are sometimes confused. 

Where an adjoining owner consents to a party wall notice they will sometimes do so on condition that the building owner pays a surveyor to schedule the condition of their property. The building owner will generally be happy with such a response as the costs of having one surveyor record a schedule of condition is considerably less that two surveyors agreeing an award.  

This article gives a succinct overview of party wall procedures.

Question

We are planning to serve notices on the adjoining owners.  However, on the Land registry website the recorded owner of the property has passed away and detail of ownership has not been updated.  Who should we address and send the appropriate notices to?  Who will therefore act on the adjoining owner’s behalf in order to respond to the notices?

Answer

Where there is uncertainty over the ownership of an adjoining property it would be best to address the notices to ‘The Owner(s)’ in accordance with section 15 of the Act.  Do bear in mind that notices addressed to ‘The Owner(s)’ must be either handed to a person on the premises or fixed to a conspicuous part of the premises. You can read more about the methods of service here.

Question

At the rear of two buildings there is a very old boundary wall which acts as a party wall and is shared between the two buildings.  There are no records of where the boundary lies so we assume it runs down the middle of this wall.

On one side of this wall, there is Neighbour One’s garden.  On the other side of the wall, there is a single storey storeroom created in the 1960s by roofing over the garden of Neighbour Two.  So the storeroom belongs to Neighbour Two.  There is probably some tanking or a void between the storeroom and the boundary wall, but the boundary wall does support the roof of the storeroom.

Thus, it will be noted that the shared boundary wall has to be used for two purposes – to act as a garden wall for Neighbour One and to act as part of a flat-roofed building for Neighbour Two. The only access to this wall is through Neighbour One’s garden.  There is no opening from the storeroom into Neighbour One’s garden – the wall is blank.

If the two neighbours differ in their view as to how to maintain the wall, how could this be resolved, preferably without recourse to party wall surveyors and serving formal notices?  And does the Access to Neighbouring Land Act apply here, even though the boundary wall is agreed to be a shared party wall and Neighbour Two cannot prove or claim full ownership?

Answer

Original walls dividing rear gardens will tend to be built equally astride the boundary and if both neighbours agree it’s probably best to proceed on the basis that it is a party fence wall.

If the wall is defective or in want of repair, one of the parties will need to take the lead (they would become known as the ‘building owner’) and serve a Party Structure Notice. The notice should set out what is proposed and how they think the costs should be apportioned. If the recipient of the notice (known as the ‘adjoining owner’) agrees with what is proposed they should consent to the notices and pay their contribution when presented with an invoice upon completion of the works.

If the adjoining owner does not agree with what is proposed they they can dissent to the notice and trigger a dispute – both owners would then have to appoint surveyors (or a single surveyor) to determine that dispute. Section 11(5) of the Act sets out how the costs of the works should be defrayed between the owners i.e. according to the use which the owners respectively make of the wall concerned and responsibility for the defect or want of repair concerned.

 

Question

My neighbours have permission not only to build onto, but also to increase the height of, the wall at the end of my garden.  Neither their builder or surveyor was aware that the level of our garden is higher than the plot and that the walls they are building onto will be effectively below ground or that they also bordered another garden.  I have no building experience and so I am not sure whether their construction method is correct.  Do I just have to accept their opinion that the wall will be fine with more weight added and holes dug nearby?  2 years ago the adjoining garden wall collapsed – it had no foundations.  It was ridiculously expensive and disruptive.  Can I ask to see who has insurance in case someone makes a mistake?   

The surveyor has emailed to say a Party Wall Notice is coming in the post and done some updated plans.  I think we need advice about the Party Wall Notice but also the boundary generally.  If we enter into a Party Wall Agreement are we conceding that we do not own the wall without any further investigation? 

Finally over the summer the owner was with the surveyor as I passed and they mentioned that they would like access to my garden to erect scaffolding.  I asked at the time and subsequently in writing that they let me have details in good time for me to consider but I have no further information.  Were we to agree to scaffolding I guess we would need an agreement in place for that.

Were we to instruct a surveyor would we be responsible for fees relating to advice on construction method etc?

Answer

Assuming that the wall at the end of the garden is built astride the boundary it will be a party fence wall. That being the case, any works that directly affect that wall or any adjacent excavation will be notifiable to you under the Party Wall Act. Upon receipt of those notices you will have the right to dissent and appoint a surveyor of your choice and, in all normal circumstances, that surveyor’s reasonable fee will be paid by the building owner (being the party benefiting from the works). The building owner will also need to appoint a surveyor although you can both concur in the appointment of a single surveyor (known as the ‘Agreed Surveyor’).

Section 2(2)(a) of the Act confirms an owner’s right to increase the height of a party fence wall so you can’t prevent the building owners from doing that.  However, the appointed surveyor(s) will determine the time and manner of executing any work and that would include the method of construction insofar as it effects the party fence wall. 

If there are significant engineering issues to be agreed, such as the design of a retaining wall, your surveyor can argue that he/requires input from an advising engineer (at the expense of the building owner) and that would normally be considered reasonable.

The Act provides a right of access where it is necessary to undertake notified works and where that is the case the details will be agreed by the surveyor(s) and confirmed in the document that they serve on the owners (known as a ‘party wall award’)

Insurance is not a matter for the appointed surveyors but the building owner is responsible for any damage caused by the notified works and you have the right to request security for expenses.

Party wall surveyors do not determine boundaries but nothing that they agree will affect the current status of the wall.    

Question

Our neighbours have served a notice on us stating their intention to build a kitchen extension up to the boundary line between our properties. Within our side of the boundary is a brick garden wall about 12ft long, the rest being wooden fencing, which lies on the boundary along the remaining  length of the garden.  On our side of the wall and fence is an established border with mature plants and fruit trees.  Our neighbour informs us that the brick wall will have to be demolished, the wooden fence taken down, and the border removed and paved as we would not be allowed to breach the new damp proof course to his extension.

We just want to know whether (a) he has the right to destroy our brick wall, and (b) has the right to tell us that we can no longer have a planted border as it would breach his damp proof course?  We don’t really object to the extension, but we do object to our garden being destroyed. 

Answer 

If the wall is on your land (as you say below) your neighbours do not have the right to remove it. The Party Wall Act gives them the right to underpin it if that is necessary to keep it stable during the works. 

If your wall remains the question in respect of bridging the damp-proof course does not arise.   

If you allowed your wall to be removed (to be neighbourly) that would be as part of an overall agreement to reinstate your planter in a way that did not bridge the damp-proof course e.g. with a low level wall to the rear of the planter and either a gap or some gravel fill behind that. All of the necessary work, including incidental costs such as potting up and reinstating plants as necessary, would be at your neighbours’ expense. The exact details would be agreed either between the owners or the appointed surveyor(s) should you choose to dissent to the notice.

Question

We are planning to repoint the wall in our cellar/basement using lime mortar as the current cement pointing seems to be having a corrosive effect. 

In this case do you think we need a formal Party Wall agreement? 

Answer

I think what you’re asking is ‘do we need to serve notice’? A party wall agreement is only required if the notice is dissented to

The Act includes general descriptions of the type of work that is covered but unfortunately does not cite examples. The clause that potentially covers re-pointing a party wall is found in section 2(2)(f): 

to cut into a party structure for any purpose (which may be or include the purpose of inserting a damp proof course); 

The Government Explanatory Booklet to the Act (page 13) gives some examples of work that might be considered too minor to be notifiable including ‘cutting into a party wall to add or replace recessed electric wiring and sockets’ which to me poses a greater risk of damage than re-pointing. 

So, in summary, I don’t think re-pointing is notifiable but that is just an opinion and other surveyors may disagree.

Question

My wife and I have been served 2 notices.

  1. Line of junction notice – the neighbours plan on building “on the line of junction of the said lands a wall wholly on our own land, by carrying out works as detailed below, after the expiration of one month from the service of this notice” the intended works are ” excavate a foundation to construct a single storey side and rear extension”.
     
  2. Three metre/ Six metre notice – “It is intended to excavate and build within 3 metres of your building and to a lower level than the bottom of your foundations by carrying out the works as detailed below after the expiration of one month from the service of this notice” the intended works are” excavate a foundation to construct a single storey side and rear extension”. 

I would like some advice as what to do as I have been asked to either consent to the work, dissent and use their surveyor to produce an Award or dissent and use my own surveyor to produce and agreed award. 

Our property is a semi-detached house. We recently moved into it and the previous owner has moved the old garage forward slightly and already extended the rear of the house and there is now a utility room behind the garage where the old garage used to be. These new buildings do not currently go up to the boundary between the houses. 

However in the future we would like to be able to extend the side of our house to the furthest we can and also build a second storey on it and I guess my question is where would we stand then if the neighbours were to build up to the line of junction? Would we be able to do the same considering there would be a wall already up very close to our property line as our builders would not be able to get to the neighbours side of our new wall?

Answer

Your neighbours have a right to build up to the boundary but can only project their foundations over the boundary if it is necessary. It is not generally necessary in this situation as they can build a wider foundation placed entirely on their own land (known as an ‘eccentric’ foundation). Assuming that they keep the wall and the foundation on their own land you will also be able to build up to the boundary in the future without the hassle of having to cut back. 

You might suggest to your neighbour that they build a new party wall astride boundary. That wall would then be available to use as part of your future extension although you would be obliged to make a fair contribution (not now but when you make use of it). 

In light of the complications above I would suggest that you dissent to the notices and appoint a surveyor. 

Having a formal record of what has been agreed/built will be important when you come to do your works.

Maintenance of an Exposed Party Wall

by The Party Wall Surveyor

Question

This relates to 2 commercial properties, an open depot owned by my family and a single storey office block owned by another company. Our property has a tenant on a long term full repairing lease and we understand the office block is also rented.

We understand that in the late 90’s, prior to our ownership, our site underwent extensive renovation and development. Part of this work involved the demolition of a brick built shed, the back wall of which was also the external side of the back wall of the above mentioned office block. The roof of the shed adjoined the back edge of the office thereby affording the office building a high degree of protection from the elements. This is an unusual arrangement but had been in place for many years prior, apparently with the agreement of all parties.

The shed on our site was demolished, including removal of the roof, and a new single story workshop was constructed approx. 1.5m away from the back wall of the office. This section of wall now forms a small part of the boundary line between the two properties. We understand that a party wall agreement was entered in to at the time of the development work and any necessary works were undertaken to ensure the office wall was waterproof. Indeed, we are not aware of any problems during the ensuing period. Unfortunately, we do not have a copy of the PWA.

However, we have recently heard from the current owners of the office block via their solicitor that damp is now penetrating the wall in question and that we are being held responsible on the grounds that as the current owner (although not the owner who did the work) we are responsible for removal of the shed and its roof and this action has led to the damp problem. We have made them aware that the roof and shed were removed more than15 years ago.

Therefore we would like to know if the original PWA has any relevance in this situation and, if so, is there a register of all party agreements available from which we could obtain a copy. As a final point, do you have an opinion as to who might be responsible for the damp problem.

Answer

First of all, there is no central record of party wall agreements.

Regarding the current problem, I can’t see how you would be responsible for the damp issue unless it’s being caused by something that is happening on your side of the wall (such as bridging of the damp-proof course).

It’s most likely that the affected wall was a ‘Type B’ party wall and as such your predecessor will have had to serve notice when it was exposed to the elements by demolition. The award will have included a provision for permanently weather-proofing the exposed wall to protect it from the elements (in accordance with section 2(2)(m) of the Act). Once it was no longer enclosed on your side it was no longer a party wall and your liabilities ceased (beyond fulfilling the provisions of the award).

If it is a ‘Type A’ party wall the same weather-proofing requirement would have applied when it was exposed but it will remain a party wall. However, the costs of maintaining a party wall (see section 2(2)(b) of the Act) are apportioned according to the ‘use made’ (see section 11(5)) and as the wall is now only being used by your neighbour they would pay 100% of the costs.

Question

My mother’s neighbours are intending to extend their property.  They have served a party wall notice.  If my mother agrees to the extension without the need for a party wall survey, is she still protected by the Act if something goes noticeably wrong?

Answer

The short answer is ‘Yes’. The case of Onigbanjo vs Pearson confirmed that even if an adjoining owner consents to a party wall notice they do not lose any of their rights including the right to appoint a surveyor if a dispute arises later in the process, for example, over the cause of or cost of making good damage. 

If your Mother does intend to consent she might want to make it conditional on the building owner paying for a surveyor to record the condition of her property prior to works commencing. Without that schedule of condition it will be difficult to differentiate between existing and new damage.