Question

We’re planning a basement extension and will need to notify the owners of the property next door. It is split in to 3 flats but the freehold is jointly owned by the 3 leaseholders. Do we notify the freehold company, the 3 leaseholders or both?

Answer

The starting point is the definition of an owner and that is confirmed in Section 20 of the Act as any party with an interest in the adjoining property of greater than 12 months – that means that the work is potentially notifiable to freehold and leasehold owners (assuming that the leases have more than 12 months to run which is very likley).

The next step is to establish whether the work affects the adjoining owner in a way that is described in Sections 1, 2 or 6 of the Act. Sections 1 & 2 are quite straightforward but which of the leasehold owners must be notified of works falling under Section 6 is a slightly grey area as it’s not specifically defined in the Act. This is what the relevant section states:

This section [the section that deals with excavation] applies where … a building owner proposes to excavate, or excavate for and erect a building or structure, within a distance of three metres measured horizontally from any part of a building or structure of an adjoining owner and any part of the proposed excavation, building or structure will within those three metres extend to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner.

Most surveyors take the ‘measured horizontally’ reference to mean that the owners of flats at all levels should be notified if their demise is within 3.00m (measured horizontally) but some would disagree. The important thing is to be able to justify your decision. The arguments against notifying leasehold owners of the upper floor flats is that the risk of damage is lower than to the ground floor flat and that it would get ridiculous if an owner planning works falling within Section 6 of the Act was unfortunate enough to live next door to a high rise block (although that would tend to have deep foundations).

Follow up query

Thank you for your response but can you please also clarify which owners have to be notified of the new wall that we propose to construct at the boundary as part of our rear extension?

Answer

I’m assuming that you mean that the wall will be built up to the boundary but wholly on your land (a new wall astride the boundary – a party wall – could only be built with the adjoining owners’ express consent).

In short, you need to notify all parties that have an interest in the section of land which adjoins the wall that you intend to build. As it’s a rear extension, it is the adjoining owners’ back garden that is relevant. The garden will form part of the freehold so they must be notified but also whichever leaseholder(s) have use of the relevant section. That’s typically the lessee of the ground floor flat but not always.

It is a Line of Junction Notice that you need to serve (under Section 1 of the Act) and the notice period is 1 month.

Question

I am in dispute at the moment with my Surveyor and the building owners Surveyor over final inspection costs.  The building owners Surveyor referenced a Counsels opinion and stated there was no requirement for a final inspection allowance to check the works as the works were deep excavation including a demolition of the adjoining building a detached bungalow  Although my Surveyor did note that this was contrary to RICS best practices, despite this it was not entered in the Party Wall Award (August 2019).

Since then I found out that the foundation work and backfill was carried out incorrectly.  As a result the retaining wall under the right to support is not supporting my property and it is now susceptible to subsidence.  I proceeded to engage a structural engineer to inspect the work at my expense, and he has recommended remedial works to be carried out; which should be at the building owner’s expense.  Is it right for the Surveyors to insist on payment on account from me?

I need the works remediated as I need to build a small wall and fence, I cannot do this until the work is carried out (not at my expense).  I cannot even sell the house in that state.  The other issue is the building owner has no room to maintain his side of the building unless I give permission and the fence, which is replacing hedges, will obfuscate the gas boiler flues.

Answer

To answer the final question first, as the work has already been completed the fact that the building owner has sold/is selling their property has no bearing. Responsibility for damage caused remains with the party that undertook the works.

The building owner is responsible for any loss or damage caused by the works authorised by the party wall award so you are entitled to put forward a claim and if that claim is rejected by the building owner it must be determined by the appointed surveyors.

It is for the surveyors to determine whether a final inspection if justified. As the award did not make provision for one they must have decided that it was not.

It’s unusual for the surveyors to request payment on account. Third Surveyor will sometimes do this but it would be equal payments from both owners so that it did not give any clues as to their determination.

If you believe the two appointed surveyor are not acting effectively you have the option of approaching the Third Surveyor – their details should be in the award.

Ownership of a Defective Retaining Wall

by The Party Wall Surveyor

Question

My neighbour’s back garden is approx. 5ft higher than mine and there is a wall at the boundary. Part of the wall is leaning towards my garden and there are several large cracks. I’ve spoken to my neighbour about repairing it but they don’t want to know.

Answer

The first step is to review the property’s deeds in case they provide any information on who is responsible for maintaining the wall.

Where the status of a boundary wall is unknown, it can be considered to be a party structure with a shared responsibility for maintenance. However, where the wall has a retaining function the presumption is that responsibility for the maintenance generally lies with the owner of the property who derives benefit from the support. This is supported by section 11(5)(a) of the Party Wall etc. Act 1996 which states that the cost of repairing a party structure is defrayed according to ‘the use which the owners respectively make or may make of the structure or wall concerned’.

I would suggest treating the wall as a party structure and serving notice on your neighbours exercising your right of repair in accordance with section 2(2)(b) of the Act. Make it clear when serving that you believe them to be responsible for the full costs of repair and that you will provide an estimate of those costs in due course. Should they have some paperwork which confirms that you are responsible for maintaining the wall it should be flushed out by serving notice. If they dispute either responsibility (without providing any evidence) or the costs, surveyors would have to be appointed to determine.

The disadvantage of pursuing this course of action is that the costs are recouped retrospectively from the adjoining owners and, should they fail to pay, you would have to enforce. You would not be going to court to argue your case, as that would already have been determined by the surveyors, only to enforce the decision which is much more straightforward.

Question

Our neighbour started a building project, a loft conversion and rear extension, but work stopped six months ago and the site has been idle since. The scaffolding remains up and does protrudes over the boundary into our property.

When we renovated our house we installed a satellite dish for television. We have not been able to use it since we moved back in due to the scaffolding blocking the signal. If our neighbour had been honest with us about when he would be carrying out his work, he could have moved scaffolding boards so we could at least watch television in our own home.

Do you have any advice as this is causing us a lot of grief?

Answer

The Party Wall Act provides a right of access to undertake notified works where access is necessary. However, the Act also confirms that the adjoining owner must not suffer unnecessary inconvenience as a result of the works. As the scaffold has not been used for the last 6 months it should have been removed.

You don’t say why work has stopped, you may not know, but if the building owner has run in to financial difficulties or fallen out with their contractor it may have been difficult for them to arrange the for the scaffolding to be removed.

If you’ve not already done so, you should ask the building owner to remove the projecting elements of the scaffold, within a reasonable time period, until they are needed again. Should he fail to do so, you could arrange for a scaffolder to remove the projecting elements (and leave them in the building owner’s garden), relocate the satellite dish etc. and claim the costs back from the building owner. If the cost becomes a matter in dispute it can be determined by the party wall surveyor(s). If surveyors were not appointed originally you still retain that right if a specific dispute such as this arises. Unfortunately, you might still need to go to court to enforce payment of costs awarded to you.

Alternatively, you could apply to court for an injunction forcing the building owner to remove the scaffold as it is now a trespass. I would recommend that you seek legal advice before taking this step.

Question

Me and my partner live in and own a flat as a leaseholder. I am on the top floor of a 2 floor building with 2 floors. The freehold was put up for sale in November with approved planning permission to add 2 flats above us in the roof space. This will involve changing and making the roof larger to accommodate. I have never been consulted as to how this would effect my flat and how the works would be carried out.

The new freeholder has sent out letters informing is that work will begin in the next two weeks, will last for 4-6 months.  They want to send a surveyor to examine our’s and the two other top floor flats ahead of the works. My reading and basic understanding of the act would be that he should issue notice under the party wall act to us as the the work will be happening adjacent to my property’s ceiling. 

In addition to this a number of other issues are yet to be addressed by the freeholder such as us having a water tank in the loft, as do other flats, access for cars around the site during works, safety of the building and surround area during works, and the safe habitation of our flat when the roof will inevitably be taken off.

Could you please advise if my understanding is correct regarding the act and a notice should be issued? And if one should and then isn’t issued what our steps would be if works were to begin?

As a further bit of background prior to the freehold being sold a different developer approached us. They said that with the roof having to come off and other works, they could not see a way the work could happen without us having to vacate the property for at least 2 months. They wanted to come to and agreement with us before any works began. Obviously this is a different entity that has brought the freehold but I don’t see how the same issues around vacating the property during works wouldn’t apply.

Answer

You need to think it terms of party structure i.e. the structure that divides your demise from the area being developed and whether it will be affected in one of the ways described in section 2(2) of the Act. Based on your description below, the party structure wall be the ceiling of your flat/floor of the roof space.

Ceiling joists are not generally strong enough for use as a floor to an occupied space so I think it’s likely that the freeholder will install a separate floor over the existing. That makes it less likely that they will have to directly affect the existing structure.

The ways that a party structure could be affected that would require notice to be served include temporarily exposing it to the elements or cutting projections away from it but this could only be determined by reviewing the construction drawings.

It’s possible that you have separate rights under the terms of your lease but that would be beyond the scope of this website.  

Question

What I wanted to ask you was is my neighbour allowed to start work? If she is I’m absolutely unhappy with that as I am home self isolating all the time and it would be horrendous living next door to all that noise.

Note – this question was submitted during the Coronavirus crisis.

Answer

As it stands, the Government guidance does not prevent building works from being undertaken so long as social distancing can be maintained. Works may therefore proceed and any right of access over your property to undertake the works still stands. Access is, as always, subjects of 14 days’ notice in writing.

I don’t know the background to your case, but if there is a party wall award in place it would typically include safeguards relating to access such as the erection of a temporary hoarding. You would need to remain indoors while the hoarding is erected but that should take no more than a couple of hours and once it is in place works should be able to continue without compromising your self-isolation.

It is generally accepted that building works will cause a certain degree of noise disturbance and unfortunately this must be accepted by the adjoining owners during normal working hours (typically between 8:00am and 6:00pm Monday to Friday and 8:00am and 1:00pm on Saturdays). I appreciate that this does not help neighbours who are at home during the day but that is not unusual even during normal times.

Despite building works not being prohibited by the current restrictions there are practical issues which may arise e.g. it is increasingly difficult to arrange for the delivery of materials to site and many Building Control departments are either operating on reduced hours or not at all. It’s therefore possible that the building owners may decide to put the works on hold until the restrictions have been lifted.    

Question

My neighbour will be starting work on a side return extension shortly and I am concerned about the water drainage and the build over of any pipe work. I understand that this is a separate agreement and part of the building control works. Is there anyway we can request/caveat that we want to see approved documentation for these works?

Answer

Drainage is covered by the Building Regulations and will therefore be checked and signed off by the Building Inspector. If they are within building within 3 metres of a public sewer a ‘build over agreement‘ will be required from the local water authority and they will undertake their own checks.

The party wall surveyor(s) can only consider how your below ground drainage might be affected by the notified works which, in practical terms, will be the excavation. This would take 2 forms, either directly if a shared drain is being altered or in the longer term by damage as a result of ground movement. 

The surveyors should limit the amount of time that a shared drain should be temporarily bunged and ensure that there is sufficient capacity in the pipework for this not to become an issue. 

Surveyors will often include a requirement in the award for the building owner to arrange a pay for a CCTV scan of the adjacent below ground drainage before and after the works. If there is a real risk of ground movement such would be a sensible precaution that protects both owners.    

Question 

The fence between mine and my neighbour’s garden is in very poor condition with parts of it having broken away completely. Now my neighbour is planning to build a rear extension and has sent me a notice. If I appoint a surveyor will they mark out the boundary so that there’s no confusion? 

Answer 

I need to make a distinction between confirming where the boundary line is so that it does not inadvertently move during the works and a boundary dispute. 

Appointed party wall surveyors cannot determine a boundary. If there is a dispute over the location of the boundary that is critical to the works the dispute should be resolved before the works proceed. The RICS has a neighbour dispute service to help neighbours resolve property disputes and maintain harmony without the need for intervention by the courts. It’s possible that a party wall award could be agreed and served without a boundary dispute being resolved but the wording would need to be amended to confirm that the true position of the boundary was unknown and any drawings should make clear that the boundary line shown is nominal. 

If your concern is that the accepted boundary position may become blurred during the works that is something that the appointed surveyors can assist with. I suggest including a clause in the award along the following lines: 

Prior to constructing the wall described in clause X of this award, [The building owner is to] agree the location of the boundary with the adjoining owner and confirm with an indelible mark on the rear wall of the property. 

Where there is a party wall dividing the two properties in question the boundary will generally be at its centre and that can be easily transferred onto the rear wall.

Question

We have produced some basic layouts for the client and they have found a builder themselves to do the works. The property is a flat in the semi- detached house. The flat is at the ground floor with the neighbours living at the first and second floors. 

The contractor has raised an opening to an internal wall slightly higher than the existing- but there has been a pre-existing opening in that place. Is there a party wall issue? It is something has not really crossed out minds naturally as the works are so simplistic in nature, there are no structural engineers involved and it is client managed. But in order to protect the client, would you say a notification or anything else they should do as a precaution right now?

Answer 

When considering internal changes to a flat it’s best to consider the Party Wall Act in terms of internal structures i.e. where are the party structures in relation to the change? As the change is to an internal wall within a ground floor flat in this case, the only relevant party structure is the one above i.e. the ceiling/floor structure that divides the clients’ flat from the flat above. You then need to review section 2 of the Act (the part that deals with party structures) and consider whether the changes affect the party structure in any of the ways described in that section. 

Looking at the photos that you sent, the new opening does not appear to extend all the way up to the party structure (the ceiling). The work would not therefore be covered by the Party Wall Act. 

The only other point to bear in mind is the lease terms, all leases include an alteration clause i.e. a clause requiring the freeholder’s consent for material changes. It may be worth checking the wording of that clause to see whether this change is covered. If it is the client would have to apply for a Licence to Alter. That is generally done in advance but can be done retrospectively.

Party Wall Notice Served While on Holiday

by The Party Wall Surveyor

Question

Our neighbours’ furniture is being moved out piece by piece, which suggests they are moving out ahead of work starting to their property rather than holidaying somewhere. However, we have had no official notification. We’re due to go away ourselves in a few days and are worried that the party wall notice might arrive while we are on holiday. Is there anything we can do? 

Answer

From the date notice is served you will have 14 days to confirm your consent – if you do not respond (because you are away) you will be deemed to have dissented and must appoint a surveyor. Following the deemed dissent, your neighbour is obliged to write to you again requesting that you provide surveyor’s details within a further 10 days. So that’s 14 days + 10 days (+ 2 days for each stage if documents sere served by post) – you don’t say how long you will be away for but if it is longer that 24 days I’d suggest that you either provide your neighbour with an email address for service or nominate someone to receive the notice on your behalf (possibly the surveyor that you intend to appoint). 

If you do fail to respond or provide surveyor’s details when requested your neighbour still cannot just proceed with the works – they will have to appoint a surveyor to act for you (not the same surveyor that they have appointed). That surveyor should act no differently to how they would if you’d chosen them yourself.