Category Archives: Notices

Do I Have to Notify the Leaseholders of the Flats in the Adjoining Property?

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.

Ownership of a Defective Retaining Wall

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.

Freeholder is Developing our Roof space – Should we be Notified under the Act?

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.  

Will My Surveyor Mark Out the Boundary So That There’s No Confusion? 

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.

Is Widening an Opening to an Internal Wall Covered by the Act?

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

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.  

How to Serve a Party Wall Notice When an Adjoining Owner Has Recently Passed away

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.

Neighbours Differ in their View as to how to Maintain a Shared Wall

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.

 

My Garden Wall is to be Re-Built and I’m Worried About the Consequences

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.    

Is Re-Pointing Covered by The Party Wall Act?

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.