A Practical Guide to The Party Wall etc. Act 1996
People often find that implementing the Party
Wall Act can be frustrating and expensive. It is not unusual for a building project to be delayed by a couple of months and
surveyor's fees to run to a couple of thousand pounds just for the Party Wall aspect on what might be considered to be a fairly
straightforward alteration to a domestic property. To help you navigate your way through the Act we will take a look at the most
common problems from the point of view of the party planning the works.
The Party Wall Act requires you to serve notice on any neighbours that may be affected by your planned works either 1 or 2 months
in advance depending upon which type of notice it is. The first decision you have to make to be made is whether to serve the notice
yourself or get a Party
Wall Surveyor to do it for you. There are no prescribed forms for the notice so there is no reason why you should not do it
yourself (there are some sample letters in Part 5 of the Party Wall leaflet)
although if you are going to be appointing a surveyor later it would be better to get them to serve the notice as well.
This decision would be much easier if you knew in advance whether or not your neighbour was planning to consent. Why not smooth
the way by giving your neighbour a copy of the plans as soon as they are ready and at least a week or two before serving the official
notice? Take the plans round personally and explain the parts of the work which will affect their property. Include your architect's
office number in case they have any technical questions. Having received full details of the work your neighbour should may be
able to tell you whether or not they will consent before you serve the notice; although they might wish to consult their own surveyor
before making any response.
Even if you receive verbal consent at this stage, you still need to serve the notice and obtain written consent. To be helpful,
there's no reason why you could not write a consent letter which your neighbour can just sign but you need to make sure that your
neighbour understands what you are planning to do and what they are signing - if your neighbour is a frail, 102 year old widow
and they give consent without consulting anyone, you could be accused of taking advantage of your position when her 25 stone, 32
year old grandson finds out what you got her to sign. In cases like this, you may consider it worthwhile to employ a Surveyor just
so, if disputes arise later, you can prove that you have not taken advantage of your neighbour's ignorance.
If your neighbour consents then that is the end of the matter as far as The Party Wall Act is concerned although to protect
yourself you may wish to arrange for a schedule to be taken on their property to identify its existing condition. This will ensure
that any existing defects are recorded and not wrongly attributed to your work later.
If your neighbour chooses not to consent in writing then the next decision to be made is whether 1 or 2 surveyors are appointed.
The Act allows for an 'Agreed Surveyor' and you are free to put forward the name of your surveyor for their your neighbours consideration
although you should not put any pressure on them to concur in his appointment.
What often happens is that your neighbour neither consents in writing nor dissents but just ignores your notice. This is fairly
common in situations where the adjoining property is tenanted or converted into flats. The Act states that if your neighbour does
not consent within 14 days they are deemed to have dissented and must appoint a surveyor.
This is problematic as a neighbour who has ignored your notice is unlikely to then spring in to action and appoint a surveyor
and the Act recognises this and provides a solution; you must follow-up your original notice with a reminder letter giving your
neighbour a further 10 days to make an appointment following which you can appoint a surveyor on their behalf.
Having done everything correctly yourself and your neighbour having done nothing you would think that you could appoint your
surveyor as 'Agreed' and save yourself a few pounds but unfortunately the Act states that the adjoining owner has a right to their
own surveyor unless they agree otherwise.
Surveyor's fees are also an issue that can cause friction. Under the Act it is the surveyors that decide who pays their fees
although in all normal circumstances, that will be the party planning the work which is only fair as your neighbour was quite happy
with the way things were. The exception will be if the actions of your neighbour cause unnecessary expense. An example would be
if they called out the surveyors to inspect some damage that was shown to pre-date the works.
As the party planning the works, you will have complete control over whom the surveyor you appoint and what they charge. You
will either agree a fixed fee or an hourly rate. The same cannot be said of your neighbour's surveyor (if you cannot agree on an
Agreed Surveyor) as he is chosen by your neighbour and is not required to state his fee until just before the award is published.
If you or your surveyor consider the fee demanded to be unreasonable, it should be referred to the 'Third Surveyor' for review
although this will incur a further fee and take another couple of weeks. The Third Surveyor is selected by the two appointed surveyors
at the start of the process to resolve disputes.
Unfortunately some fee orientated surveyors have learnt to work the system and pitch their fee as high as they can without causing
the adjoining owner to challenge it for fear of delaying the works and incurring a further fee.
Although the Party Wall Agreement covers many aspects of the work including access, contractor's insurance and resolving damage
one of the clauses which is most contentious relates to working hours. The Award will state the permissible working hours and they
may appear quite restrictive at first glance; normally 8.30am to 5pm with no allowance for week-ends or bank holidays. Bear in
mind that this clause only relates to the works which are the subject of the award and not the associated works which can carry
on outside of these hours.
As with all aspects of the Party Wall Act the whole process will run much more smoothly if the neighbours take a moment to consider
each others feelings before ploughing on.
Article by Justin Burns MRICS of Peter
Barry Party Wall Consultants