Party wall agreement(14 Posts)
Totally confused myself researching the rules about party walls. Can anyone tell me what to do please?!
We are planning to remove a chimney breast from the ground floor of our mid terrace house. We know we will need a structural engineer and a builder. But also a solicitor to draw up a party wall agreement and a surveryor? I'm unsure who to contact first and what order everything is done in. Argh! Furthermore, next door is two flats. Do we need a party wall agreement with the upstairs flat too even though we are leaving that part in?
You need a party wall surveyor who will need the structural calcs to include in the party wall award (paperwork). I’d find your builder first as s/he may have a structural surveyor they use, then find your party wall surveyor who will serve the notices. Shop around as prices vary for PWS as do their qualifications. The PW surveyor then serves notices on your neighbours (they’ll advise re flat situ) and you have to wait 2 months before starting work, unless your neighbours agree otherwise. No solicitor needed. Building control (either private or my preferred is via local council) also need to be informed - make sure your builder and structural engineer have experience in your borough as rules vary as to what type of support is permissible.
Tbh we had an architect for our extension which involved removing a whole chimney from the party wall and roof (shared) plus foundations and steels up the the edge of the party wall.
The architect just pointed me at the government website and template letters and told me to go ahead, and just run it by him for checking before taking it next door.
Total cost: zero.
Don't get solicitors or party wall specialists/rip offs involved if you don't have to.
You need to serve a Notice under section 3 of the Act on ANY adjoining owner. You have rights given to you under Section 2 (2) g of the Act to cut away from a party wall, but the Notice is served under section 3. The Notice must state three things:
The name and adress of the building owner
The nature and particuloars of the proposed works
The date on which the proposed works will begin
The Notice has to be served on any adjoining owner. An adjoining owner is classed as anyone who has an interest of more than 12 month in the property - in the case of a rented property usually the property will be on a 6 month AST in which case you do not need to serve of the renters. If the house is in joint ownership you will need to serve on each of the owners. Check on the Land Registry website - £3 per search.
Online templates are OK, but they must comply with the requirements of the Act - if they are incorrect they may be invalid, in which case any party wall work which is carried out on the back of an invalid notice will also be invalid and the whole process will have to start over again. You can download a flowchart from the website of the Faculty of Party Wall Surveyors which explains the process (I've attached it but if it doesn't download, go there). It is all quite straightforward.
""if they are incorrect they may be invalid, in which case any party wall work which is carried out on the back of an invalid notice will also be invalid and the whole process will have to start over again""
That's not true, once the work has been done the party wall act is irrelevant and even if the work is ongoing the adjoining owner can only get an injunction to stop work.
The adjoining owner's recourse is the same for any damage caused, so you would still have to pay for any work needed to their house as a result of your work, but you'd probably end up with a bigger legal bill if it came to an arguement.
John - The whole party wall process begins only when a valid Notice has been served. Invalidly served Notices are exactly that - invalid - and in the case of such Notices, the process must begin de novo. A valid Notice is essential in order for any party wall matters which may subsequently follow to be dealt with, because any appointments made, and any Award produced, on the back of invalid notice(s) will usually be deemed invalid if appealed; but as you correctly state, the Act cannot be actioned retrospectively (i.e. Notices cannot be served when works in pursuance of the Act have already been completed).
Section 7 of the Act covers compensation for loss or damage as a result of works carried out in pursuance of the Act and section 10(8) is a further mechanism for remedy of loss or damage; but compensation or payment for loss or damage under the Act only applies to works which are covered by the Act; so loss or damage arising from the execution of works which do not fall into sections 1, 2 or 6 of the Act will not be remedied by the Act, but can be remedied under common law.
If you were an Adjoining Owner, wouldn't you want any damage to your property arising out of your neighbour's works to be made good without you having to pay for it? That's exactly what the Act does for you.
The 'legal' bill you refer to presumably alludes to the fees of the surveyors involved. These fees must be reasonable - see Section 10(13) of the Act. Also, bear in mind that these fees will usually be borne by the building owner, so there is usually little risk to an Adjoining Owner in this respect. Building Owner's surveyors will usually charge a fixed fee, but Adjoining Owner's surveyors will usually charge an hourly rate. No surveyor should need to take more than 10 hours to reach Award stage on a simple job (and that time should include a schedule of condition survey and follow up visit upon completion).
It must be noted that the Act is an enabling Act - i.e. it has been designed to prevent an adjoining owner from frustrating a building owner who is desirous of carrying out building works to which the Act applies. It is there to help and to provide a framework for resolving disputes in a timely and reaonable manner. Unfortunately, such is the nature of various forums, it is often only the bad experiences that get an airing.
Yes, my point is if you serve an invalid notice either it'll get picked up and you'll have to serve a correct one, or you'll do the works and fix any issues that happen next door and no one will ever know. It's not like writing a will where if you get it wrong people will only find out when it's too late.
My comment about legal fees is that if you have a party wall award the process for repairing will be handled by the surveyor based on their survey before hand. If not, then you would have to argue in court about the extent of the repairs needed at great expense.
The act isn't really that much of an enabling act, it's just moving things that would have been court cases after the fact, to being agreed up front and arbitrated by appropriate professionals in the event, rather than cluttering up the courts.
If you serve an invalid notice, the notice is invalid, and the process has to begin again. Of that there is no question, and the Act is quite clear. However: some of the time, some people are ignorant of the Act so do nothing, carry on with notifiable works regardless, and nobody is any the wiser; and some of the time, people know a little of the Act, have good intentions and do something which is almost, but not quite, right, carry on with the notifiable works, but no-one picks up on it, so it all goes unnoticed; and then some of the time people know exactly what they are supposed to do and follow to the letter the procedures set down in the Act.
A lot of notifiable party wall works slips under the radar and no-one bats an eyelid because nothing has gone wrong; but then again, some notifiable works don't slip under the radar, and the eyelids are batted 24/7 for as long as it takes to put right, and then some.
The process for making good or for providing compensation in lieu is not always based upon the survey beforehand. It can be, but it is not always the case. The Act places no obligation on any person to carry out a Schedule of Condition survey prior; although, granted, it is good practice to do so. What if no such survey was carried out beforehand because it was not physically possible (rather than being obstructed), or because the works had been consented to and the two owners felt there was no need, and then the works carried out in pursuance of the Act caused the damage accidentally? If the owners can't agree to a remedy themselves, the surveyor (or two surveyors) will determine the remedial works or compensation in lieu that is required, will identify the quantum thereof and will Award on that basis (section 10 of the Act applies here). There is no arguing in court unless an Award is appealed (which it can be, upon a point of law). The surveyor's Award is binding upon the parties. It has nothing to do with not wanting to clutter up the courts and it never has been. Appeals are dealt with on their individual merits and costs are awarded by the court as the court sees fit, so spurious claimants beware.
You say it's not an enabling Act, but it is; and it has been developed since the Great Fire of London in 1666. Let's say, by way of example, that you want to build an extension, but your neighbour says to you, "I don't want that monstrosity - I hate it and I will do everything I can to stop you from building it," and goes all out to prevent it. The Act gives you rights to stop your neighbour from thwarting your attempts to build what you want to build, even though you have the necessary permssions (e.g. planning consent/building control approval/freeholder's consent etc.) to do so. Would you rather have no powers to do what you want to do without going to the expense of barristers, counsel and litigation; or would you rather there was an Act which gave you rights to do what you want and to deal with a legitimate dispute in a timely manner without the need for such expensive and drawn out action? Personally, I would prefer the latter which enables me to carry out the works at the least expense. And no, it doesn't have to cost a lot of money. The Act imposes no obligation on anyone to appoint a surveyor unless a dispute arises. The two owners can be neighbourly and the adjoining owner can consent to the works without any need to appoint anyone. The Act is there to resolve any dispute, should one arise, for whatever reason.
Tbh we're way off topic now with scaremongering. My point is unless you are on bad terms with your neighbours, save yourself a packet and just fill in the forms yourself from the official online template for free. If you have an architect hopefully they'll give them a once over before you submit.
Which is more or less what I said in the first place but with the caveat that the Notice must be valid, which you disagreed with.
And architects aren't always the best persons to check the validity of a Notice - I know from experience. For the sake of £50 the OP could appoint a party wall surveyor to serve the notice and rest happy that it was all correct.
Ah sorry I disagreed with the follow on point "any party wall work which is carried out on the back of an invalid notice will also be invalid and the whole process will have to start over again"
As once the building work is done it's done. Unless by work, you mean the condition survey and other paperwork. In which case I agree with you!
Yes, reading back I probably could have made it clearer - it's always easy with the benefit of hindsight!
By party wall work I meant the work to resolve matters which arise from the serving of a Notice, not the physical building works which, as we both already said, if they are complete then the Act won't apply.
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