We Didn’t Serve Notice But Now We Require Access

by The Party Wall Surveyor

Question

We issued a party wall notice a month before commencing work thinking that was the most appropriate form, however we have come to realise it should have been relating to section 6 1 a. But now the foundations have been dug, filled and the frame of the building is up waiting to be finished.

We had a letter from the neighbor stating they want a schedule of conditions on their side – but the work is complete. Am I correct in thinking that an award or schedule of conditions cannot be undertaken retrospectively and therefore the matter is closed? Secondly, we still need to render the wall facing my neighbour – can we lawfully access her land to do this? Before the extension, we had a right of access into their land, but the extension has blocked this passage off, however is there an act of access through my neighbors property to maintain my own?

Answer

If the notifiable aspect of your works are complete then a further notice cannot be issued or an award drawn up. 

If you did not serve a valid notice than you have no right of access under section 8 of the Act. A section 6 notice would have only given you a right of access to carry out the excavations so that wouldn’t have helped you anyway – if your new wall has been built on the boundary line you should have served a ‘Line of Junction’ notice under section 1 of the Act. You will now have to rely on your neighbour’s goodwill to allow you access.

Follw-up

What about my land registration act document – under the assent of part it states that we have the “full right and liberty for the Beneficiaries and their successors in title the owners or occupiers of the said property (ours) to enter upon the adjacent property known as ______________ (theirs) with or without workmen for the purpose of cleansing, repairing, renewing and maintaining the walls, roof, spouts and gutters and pipes of the said property the Benefactors and their successors in title making good all damage caused by the exercise of such rights as aforesaid.”

Surely this means that we can gain access to their land to work on our building? I have already given 10 days notice and expect to gain access – is this right so far? Surely there is nothing they can do to stop this access?

Answer

This type of covenant normally only covers maintenance to the existing structure – not new work. Although it also mentions ‘renewing’ that would refer to renewing a wall that was defective rather than building a wall where there was not one before.

Follow-up

True – however the wall has always been there, we have just added 12 inches to it! – admittedly, we had to take it down first as it was in need of repair.