Building Owner(s) – Roles
An owner is defined, in simple terms, as someone who owns the freehold of a property or a person(s) with more than a yearly tenancy. There may be more than one ‘owner’ of an adjoining property, for example, a freeholder, long leaseholder and occupying tenant, or someone with an agreement to purchase or lease.
The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to stop your work through a court injunction or seek other legal redresses.
An Adjoining Owner cannot stop someone from exercising the rights given to them by the Act, but may be able to influence how and at what times the work is done.
The Act also says that a Building Owner must not cause unnecessary inconvenience. This is taken to mean inconvenience over and above that which will inevitably occur when such works are properly undertaken.
The Building Owner must provide temporary protection for adjacent buildings and property where necessary. The Building Owner is responsible for making good any damage caused by the works or must make payment in lieu of making good if the Adjoining Owner requests it.
Where party walls and structures are modified, repaired, or demolished and rebuilt (s.2(2)(a) and (b) of the Act) section 11(4) and (5) provides that the cost of the work shall be shared where the work is necessary on account of defect or want of repair, in proportion to the use each party makes of the structure or wall and the responsibility of each for the defect or want of repair concerned.
Where use is made of party walls previously built at the cost of the Adjoining Owner, the Act makes provision for a fair payment to be made to the Adjoining Owner.
It is obviously best to discuss your planned work fully with the Adjoining Owners before you (or your professional adviser on your behalf) give notice, in writing, about what you plan to do. If you have already ironed out possible snags with your neighbours, this should mean that they will readily give consent in response to your notice.
It should be noted that where consent is given you are not relieved of your obligations under the Act, for example to avoid unnecessary inconvenience or to provide temporary protection for adjacent buildings and property where necessary. The notice of consent is simply confirmation that, at that time, there is nothing ‘in dispute’. Should a difference arise at a later date (for example in respect of damage caused) the procedure is to appoint either a Surveyor or jointly appoint an Agreed Surveyor (one that will act on both owners behalf).
A person who receives notice about intended work may, within one month, give a counter-notice setting out what additional or modified work he would like to be carried out for his own benefit, and accompanied by all necessary particulars. A person who receives a notice, and intends to give a counter-notice, should however let the Building Owner know within 14 days.
If you receive a counter-notice you must respond to it within 14 days otherwise a dispute is deemed to have arisen. If a dispute has arisen, a further 10 days is given to appoint a Surveyor or jointly appoint an Agreed Surveyor to act on both your behalves
What if I cannot reach agreement with the Adjoining Owners on the work to be done to the party wall?
The best way of settling any point of difference is by friendly discussion with your neighbour. Agreements should always be put in writing.
If you cannot reach agreement with the Adjoining Owners, the next best thing is to agree with them on appointing what the Act calls an “Agreed Surveyor” to draw up an “Award”. The surveyor must be a person agreed between the owners to act.
Alternatively, each owner can appoint a surveyor to draw up the award together. The two appointed surveyors will select a third surveyor (who would be called in only if the two appointed surveyors cannot agree or either of the owners or either surveyor calls upon the third surveyor to make an award).
In all cases, surveyors appointed or selected under the dispute resolution procedure of the Act must consider the interests and rights of both owners and draw up an award impartially.
Their duty is to resolve matters in dispute in a fair and practical way.
Where separate surveyors are appointed by each owner, the surveyors must liaise with their appointing owners and put forward the respective owners’ preferred outcome. However, beyond that the surveyors do not act as representatives for the respective owners. They must always act consistently with the terms of the Act to reach a fair and impartial award.
Your agreement with the Adjoining Owner, or the award in the event of a dispute, will set this out.
The general principle in the Act is that the Building Owner who initiated the work pays for it if the works are solely for his benefit. However, there are cases where the Adjoining Owner should pay part of the expense of the works. This is set out in section 11 of the Act and is for the surveyor to determine. It covers for example:
where work to a party wall is needed because of defects or lack of repair for which the Adjoining Owner may be responsible (in full or in part).
where an Adjoining Owner requests that additional work should be done for his benefit.
If a dispute has arisen and the neighbouring owner refuses or fails to appoint a surveyor, under the dispute resolution procedure, you will not be able to appoint an “agreed surveyor”.
In these circumstances you can appoint a second surveyor on the neighbouring owner’s behalf, so that the procedure can go ahead. Your own surveyor will advise you on the appointment of a second surveyor on behalf of the Adjoining Owner.
Under the Act, an Adjoining Owner and/or occupier must, when necessary, let in your workmen and your own surveyor or designer etc., to carry out works in pursuance of the Act (but only for those works), and allow access to any surveyor appointed as part of the dispute resolution procedure.
You must give the Adjoining Owner and occupier notice of your intention to exercise these rights of entry. The Act says that 14 days’ notice must be given, except in case of emergency. If access is necessary to carry out the notified works you may wish to include this requirement in the notice that you serve when seeking consent to carry out the works, so as to avoid any dispute in this respect at a later stage when work is underway.
It is an offence, which can be prosecuted in the magistrates’ court, for the occupier or other person to refuse entry to or obstruct someone who is entitled to enter premises under the Act, if the first-mentioned person knows or has reasonable cause to believe that the latter person is entitled to be there.
If the adjoining property is closed (for example an unoccupied property) your workmen and your own surveyor or designer etc. may enter the premises by breaking open a fence or door, if they are accompanied by a police officer after following the Act’s procedures.
You should discuss access for works with your neighbour. It is often in the best interests of the Adjoining Owner to allow access voluntarily to build a wall or to carry out works for which there is no statutory right of access, as this will allow a better finish to the side of the wall that they will see.
If you plan to build a party wall or party fence wall astride the boundary line, you must inform the Adjoining Owner by serving a notice. However, there is no right to build astride the boundary without your neighbour’s consent in writing.
You must also inform the Adjoining Owner by serving a notice if you plan to build a wall wholly on your own land but up against the boundary line.
The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to stop your work through a court injunction or seek other legal redress.
What happens if there is a disagreement with my neighbour?
If there is a disagreement about any work of the kinds covered, including any issue concerning compensation, the dispute is to be settled under the dispute procedure.
The surveyor(s) can make a party wall award, but cannot decide a dispute concerning the location of the boundary.
For further information regarding the roles of the Adjoining Owner(s) Click here to Read Further and The Surveyors Click here to Read Further, The Notices Click here to Read Further or the Party Wall Awards Click here to Read Further please visit the prospective pages.
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