The Party Wall Act 1996 (the Act) is often seen as an obstacle to completing works, when it is really an aid. For neighbouring owners, its flexibility should be embraced and not avoided.

In this insight, we untangle fact from fiction and break down when and how it should be used, for owners and neighbours alike.

The problem the Act has in mind

The Act is a distinct, legal solution to two related legal problems.

• The first problem involves works to a party (i.e. shared) wall, ceiling or floor. Doing works to a party wall risks being a trespass, causing civil damage, or even causing criminal damage.
• The second problem involves works of excavation close to the boundary line. Doing these works risks committing a breach of easement, nuisance or other tort that might result if damage is caused to the neighbouring property.

For both of these wide and unpredictable legal consequences, aside from the Act, the only option is to obtain the express written consent of all the other people involved.

That might be fine, of course, and frequently it is – many issues are resolved without any mention of a legal process. However, that person might be difficult to reach, already be in dispute with you about something else, or lack the technical knowledge to ever consider giving their consent. As a result, that might mean delaying the proposed works or abandoning them entirely.

In some situations, a failure to obtain consent might result in a purely aesthetic difference, but in others, delay or obstruction might allow a bad situation to become worse. A party wall, for example, that desperately needs attention might languish in an unrelated dispute about noise, CCTV cameras or parking.

The Act

The Act is designed to give you a “safe harbour”: a set of rules which, if followed, avoid any risk of a civil (or criminal) claim. In most cases there are three key stages:

1. The principal step is the service of notice. In keeping with the above, the Act makes no assumption that your neighbour will co-operate; the default (and expected) position is that they will not. Instead, they are given every opportunity to agree, thereby saving you the time and money of the subsequent steps, but in most cases, you can proceed without. This is also the key takeaway when you receive a notice: dissenting is not about actively seeking to add cost, it is the default position and you should dissent in a wide range of circumstances.
2. The next stage is the appointment of a surveyor, and if they respond in writing asking for one, two surveyors – one for you and one for them, to draw up an award. These are costs which fall on the person doing the work but, again, that is a lot more cost effective than legal dispute – or letting a wall collapse – and it is the only basis on which the law is happy for you to proceed without your neighbour’s consent.
   
   Not everyone withholding consent is trying to be difficult. Many people will simply never have the skills or expertise to sign off on the works, nor the personal means to pay a surveyor; paying for both sides would likely be the only way regardless of the Act.
3. The final stage is the production of the award, which is another opportunity to do you (and your neighbour) a favour. The Award is the document that the Building Owner requires to proceed with the works and will contain any necessary provisions (covering one or both properties) to allow them to do so safely and effectively. This would typically include agreed plans and schematics, Risk Assessments and Method Statements (RAMS) and timing and phasing of work, safety information and works to make good. These are steps which would have been required even if you had their consent, but on occasion, party wall awards contain further compensation provisions that avoid the need for whole separate agreements.

Conclusion

The Act is really permissive in the sense that it entitles the building owner to do works they would otherwise be unable to do. Despite this, the Act has a reputation for being restrictive, because the operation of the Act requires certain conditions to be met. It is misleading to speak of a “breach of the Party Wall Act” – much better to think only of those who have missed the opportunity to avoid a claim by complying.

How Capsticks can help

Capsticks aims to be the firm of choice for our housing and local government clients. We are experts on all aspects of compliance with these legal requirements and can advise on any changes in the future.

If you have any queries around what's discussed in this article, or would like further advice on how to make use of the Act, please speak to Abi Condry or James Burt to find out more about how Capsticks can help.