At some point, all property managers have to deal with Party Wall matters, but not all are as familiar with this area as they could be. In fact, not all surveyors are completely on top of it, but at EK McQuade, we specialise in Party Wall matters.
EK McQuade is the product of a merger last year between the Party Wall specialists at McQuade Property Consultancy and the Party Wall side of Earl Kendrick Associates, renowned for our specialist knowledge of property management, particularly in residential blocks.
This means we are uniquely qualified to help property managers navigate the issues involved. Our mixed skillset means we’re able to focus on long-term relationships with property managers, since they can have confidence that we can handle all surveyor-led aspects of maintaining their building.
While we manage Party Wall matters for our clients from start to finish, it is useful for property managers to understand the basic procedure and terminology, so what follows is our seven step guide.
The Party Wall etc Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. The person who plans to undertake work that is subject to the Party Wall Act is known as the ‘building owner’. Whoever owns a property neighbouring the building owner's property or occupies it with an interest greater than a one year tenancy is known as the ‘adjoining owner’.
In the context of block management, it is important to highlight that there may be a number of adjoining owners within the block, because most walls will be Party Walls one way or another.
And not only walls, but floors and ceilings, while most communal areas will also include Party Walls in relation to one or more flats.
Common types of work where your client or Landlord (as the building owner) may issue a Notice for repairs to their block are: chimney repairs, roof repairs or renewals, repairs to boundary walls and damp treatment. And common types where your client or Landlord may receive a Notice for works nearby, within or adjoining their block include general construction such as basement excavations on a neighbouring site, works to an adjoining building or adjacent penthouse works or other extensions, as well as roof repairs or new leadwork. A Landlord may also receive a party wall notice if leaseholder works that fall under the Party Wall Act are being undertaken within a flat.
Step one is for the building owner to appoint a surveyor to prepare and serve the party wall notices and to agree the terms of the party wall award. This appointment is termed the building owner’s surveyor. The building owner begins the process by asking a surveyor to review the plans and identify any potential problems before quoting a fee. They then formally appoint the surveyor by letter.
The building owner’s surveyor will check the land registry to ensure they have the correct owner's name for the adjoining property and send them a notice of the proposed works.
Ideally the adjoining owner should hear about the proposed work before receiving a formal notice. An informal approach can often smooth the process by drawing attention to any likely problems in advance. But technically, step two is issuing the formal notice.
There are three different basic types of notices depending on the particular works in question. A Party Structure Notice is required where works like those mentioned in step one are being undertaken to an existing party wall or party structure (ie. a floor separating two flats). For these types of works, a notice must be served at least two months in advance of the intended works commencement date.
A Line of Junction Notice is required where a new party wall or party fence wall is being built astride the boundary or where a new wall is being built wholly on the land of the building owner, but up against the boundary line. Examples could be building a boundary wall, or building a new extension up to or on the boundary. For these types of works, a notice must be served at least one month in advance of the intended works commencement date.
Finally, a 3m Notice is required where works are being undertaken to excavate or excavate and construct foundations for a new building within three metres of a neighbouring owner’s building, where the new excavation will go deeper than the neighbour’s foundations. And a 6m Notice is required where works are being undertaken to excavate or excavate and construct foundations for a new building within six metres of a neighbouring owner’s building, where the new excavation will cut a line drawn downwards at 45 degrees from the bottom of the neighbour’s foundations. For these types of works, a notice must also be served at least one month in advance of the intended works commencement date.
Quite often, works being undertaken inside flats by leaseholders fall under the Party Wall Act in addition to requiring a Licence to Alter, so it’s important to understand that having the latter does not render the former redundant. The requirement to serve a party wall notice is a statutory requirement under the act and the process is completely separate from the licence to alter process.
When a notice is served by a building owner, the adjoining owner has 14 days to respond.
If they do not respond within 14 days, the building owner will serve a 10 day notice requiring them to respond within 10 days. If the adjoining owner still does not respond, the building owner can go ahead and appoint a surveyor to act on their behalf.
This has important implications for property managers, as if they do not respond within the required time frames, the building owner will proceed to appoint a surveyor to act on behalf of the Landlord. The Landlord (adjoining owner) will therefore not have any control over the appointment of the surveyor acting on their behalf.
Step three depends on the adjoining owner’s response to the notice. They can either ‘consent’ to the works, and let them proceed without further consultation, or they can ‘dissent’. The latter does not necessarily mean objecting to the works, but simply appointing a surveyor to oversee the process and to agree a Party Wall Award to fully document the intended works – either accepting the building owner’s surveyor as an ‘agreed surveyor’ or appointing a surveyor of their own, termed the ‘adjoining owner’s surveyor’.
In the majority of cases, we recommend dissenting to a notice. What can seem like a straightforward project to the untrained eye upon initial review can actually conceal a multitude of issues. Unchecked issues can result in either serious damage being caused to the adjoining owner’s property or forms of construction which negatively impact the adjoining owner’s ability to undertake similar works at a future date, without incurring significant expense which could have been avoided.
Dissenting to the notice allows for a thorough review and interrogation of the proposals to be undertaken, the outcomes of which are documented in a Party Wall Award, which will include any special provisions or conditions on how the works are to be executed.
Consenting to a notice is generally reserved for the most basic of works and usually only in situations where neighbouring owners have a friendly and longstanding relationship, which provides confidence that any issues arising can be dealt with directly. This exceptional scenario won’t exist in most densely populated urban areas and therefore the number one priority must be to have your interests fully and independently protected across all stages of the works. Upon appointment, the building owner’s surveyor and the adjoining owner’s surveyor will appoint a ‘third surveyor’ to adjudicate if the two parties cannot agree on any matter.
Except in very exceptional circumstances, all surveyors' fees are paid by the building owner. These vary widely from project to project and depend on the complexity of the works that need to be assessed and the number of adjoining owners affected by the works.
Step four is an inspection of the adjoining property, whose condition is recorded either by the agreed surveyor or the building owner’s and adjoining owner’s surveyors. The former will then prepare what’s called a ‘schedule of condition’ of the adjoining owner’s property. An accurate schedule is essential so that it can be shown that any subsequent damage to the property is a result of the work and not pre-existing factors.
In step five, the surveyors or agreed surveyor prepare a document called a 'Party Wall Award' or 'Party Wall Agreement' setting out how the work should proceed and the rights and responsibilities of each party. The award also covers things like access for the surveyor, working hours and what happens in case of damage. During this stage, the surveyor will also identify any consents that are expressly required from the adjoining owner, as well as helping the adjoining owner understand whether security for expenses needs to be considered.
In some circumstances, the surveyors may also require the expertise of other consultants, for example a structural engineer. The building owner will also be liable for the fees of these other third party appointments.
Once the Party Wall Award document has been signed by all the surveyors concerned, it is finally time for step six: the work can go ahead.
Once the work has been completed, step seven is to re-inspect the adjoining building to check for any damage caused by the work. If any is found, the matter will be resolved in line with the Party Wall Award document. Typically, the building owner’s contractor will carry out repairs or the adjoining owner will accept money as payment in lieu.
Clearly, then, the bulk of a surveyor’s work on Party Wall matters takes place in the early stages, steps one to five. This work ensures there are no messy legal issues after the building work itself. Of course, all of the above assumes the original building owner understands and abides by the rules set out in the Party Wall Act.
Occasionally, people undertake work illicitly, usually from ignorance of the law. That is why, when undertaking your property inspections, you should keep an eye out for any works in neighbouring buildings, works close to or on the boundary and any suspicious activity by leaseholders. If you suspect any works should be covered by the Act, you should establish who the owners are, what work is being carried out, and request confirmation in writing that the works do not fall under the Party Wall Act.
If in doubt, either about works being undertaken on a neighbouring property or prospective work on your own building, it’s always a good idea to consult a specialist Party Wall surveyor. EK McQuade is offering free advice for News on the Block readers on our Party Wall Hotline. We also run Party Wall workshops for property managers. If you are interested in participating, call the hotline to find out more.
EK McQuade’s Party Wall Hotline: 0203 488 0516