New Walls on Boundaries by Keith Eades-Levy

 

Section 1 of the Act requires a Building Owner to serve Notice when building a new wall on a boundary. It needs to touch the boundary line, this includes any part of the foundation.

 

A Notice is not needed under Section 1 if there is already an external wall forming part of a building on a boundary.

 

But if a boundary wall (a freestanding wall not forming part of a building) is being demolished to enable a new wall to be built on a boundary, then Section 1 applies and a Notice needs to be served.

 

Extract from Section 1 of The Act

 

1(1)This section shall have effect where lands of different owners adjoin and —

 

(a) are not built on at the line of junction; or

 

(b) are built on at the line of junction only to the extent of a boundary wall (not being a party fence wall or the external wall of a building),

 

and either owner is about to build on any part of the line of junction.

 

There is what I call the ‘virgin land theory’ which is where the land proposed to be built on is prepared to remove construction from the line of junction, thereby returning it to its virgin state. If construction is removed from the line of junction, it will not be built on anymore and then in my view, the Building Owner can operate Section 1.

 

When proposing to build a new wall right up to and ‘on’ the line of junction (any part of the new wall needs to touch the boundary) then the Building Owner must serve a Section 1(5) Notice.

 

If the proposal is to build astride the boundary, then a 1(2) Notice must be served, but written permission from any Adjoining Owner must be received to build astride.

 

If permission does not arrive to build astride, the Building Owner must move the proposed wall back wholly on their land.

 

Section 1 disputes do not arise in the same way compared with other Sections of the Act – a deemed dispute cannot arise under Section 1.

 

But if there is a Section 1 dispute, Section 1(8) of the Act takes surveyors to Section 10 which means Award.

 

The benefit to Building Owners using Section 1 is they have access rights to adjoining land to build a Section 1 wall operating Section 8. The access rights can be very useful to Building Owners, particularly if scaffolding needs to be erected.

 

 

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The Statutory Appointment by Keith Eades-Levy

 

Party Wall Surveyors are put in a position of significant power when they are appointed under The Act. The appointment is statutory and personal (it is the person that is appointed, not the company).

 

The ‘Building Owner’ and ‘Adjoining Owner’ should not be called Clients by surveyors once they are appointed under Section 10, they become ‘Owners’.

 

There can be a single Agreed Surveyor or two surveyors who have a duty to work together to agree an Award.

 

Section 10 (1)

 

Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either —

 

(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or  

 

(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).

 

The Act states as Section 10 (2)

 

All appointments and selections made under this section shall be in writing and shall not be rescinded by either party.

 

The appointed surveyors must ensure they are appointed properly in a written form – The Act does not say appointments need to be in the form of a signed letter.

 

An appointed Party Wall Surveyor under Section 10(1)(b) can only be set free from the dispute resolution mechanism if he or she loses their life or, if he or she declares themselves incapable of acting.

 

Section 10 (5) 

 

If, before the dispute is settled, a surveyor appointed under paragraph (b) of subsection (1) by a party to the dispute dies, or becomes or deems himself incapable of acting, the party who appointed him may appoint another surveyor in his place with the same power and authority.

 

But it is not the same for Agreed Surveyors.

 

Agreed Surveyors can be relinquished in two other ways – refusing to act or neglecting to act.

 

Section 10 (3)

 

If an agreed surveyor —

 

(a) refuses to act;

 

(b) neglects to act for a period of ten days beginning with the day on which either party serves a request on him;

 

the proceedings for settling such dispute shall begin de novo (which means from the beginning)

 

Party Wall Surveyors have a duty to act professionally, effectively and impartially.

 

Surveyors should listen to their owners but will need to use professional judgement to decide if it’s relevant to the dispute under the Act.

 

Owners should consider very carefully who they appoint as their surveyor. Choosing the wrong surveyor could result in unexpected costs and frustration!

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