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Ask the team: can an agreement bypass the Party Wall etc. Act 1996?

I have a client whose next-door neighbour is happy with my client’s proposed works to his property, but my client knows from past experience that the Party Wall etc. Act 1996 (PWA 1996) may affect him. Because my client and the neighbour agree what will be done, how it will be done and when it will be done, do they still need to use the Act’s machinery?

No contracting out of the PWA 1996

If the PWA 1996 applies to your client’s proposed works, he cannot agree with his neighbour to somehow “contract out” of it. Either the Act applies, or it does not. Assuming it does, your client should take the precautionary step of complying with it. The parties’ informal or formal agreement may be recorded in a form that complies with the Act. This could help your client if, unfortunately, he does fall out with his neighbour over the works, if there is a change of ownership next door, or if your client wants to sell his property.

How the PWA 1996 works in practice

To explain how the PWA 1996 operates, it may be helpful to work through two examples. These examples assume that your client is the sole building owner of his property, and the neighbour he is dealing with is the sole adjoining owner of the affected property (section 20, PWA 1996).

Erecting a new building or structure

In this example, your client plans to erect a building or structure within three metres of his neighbour’s buildings or structures, and that building or structure will require foundations deeper than those of his neighbour’s (section 6(1), PWA 1996).

Your client must follow the procedure set out in section 6; it is not enough simply to reach an agreement with his neighbour, even if that agreement is in writing.

Your client must serve a notice on his neighbour at least one month before starting to excavate. That notice must state whether your client proposes to underpin or otherwise strengthen his neighbour’s foundations, and must show:

  • The site and depth of any excavation your client proposes to make.
  • The site of your client’s proposed building or structure.

Your client’s neighbour may consent to the notice within 14 days of receiving it, so, if your client has agreed how to proceed with his neighbour, he should consider whether it is appropriate for him and his neighbour to agree the form of notice and the form of consent, and then simply exchange them (sections 6(5) – 6(7), PWA 1996).

Note that your client must begin his works within 12 months and must “prosecute” his works “with due diligence” (section 6(8), PWA 1996).

 

 

 

Upgrading a garden wall

In this example, your client needs to repair a crumbling garden wall, which is a party fence wall (section 20, PWA 1996). To keep the example simple, he intends to rebuild the wall “as is”.

Your client has the right to carry out these works under section 2(2)(l) of the PWA 1996.

On the face of it, section 3(1) of the Act requires your client to serve a party structure notice on his neighbour.

However, usefully for your client, section 3(3) of the PWA 1996 goes on to say that:

“Nothing in this section shall –

(a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2…” [emphasis added]

In other words, for some types of works, while still complying with the PWA 1996, written consent from the adjoining owner (without the official form of notice) can suffice.

What other works fall within the “written consent” exception?

Although our simple example upgrades a garden wall, section 2 identifies many other works that are commonly undertaken by owners of properties. For example:

  • Underpinning and other support works.
  • Cutting into the wall for any reason (like to insert a damp proof course).

Forewarned is forearmed

The PWA 1996 has its advocates and its detractors. Whichever camp you fall into, it does contain some quirks and traps for the unwary, and this article can only scratch the surface. Don’t try and avoid the Act: perhaps better to read it carefully and use it fully.

7 thoughts on “Ask the team: can an agreement bypass the Party Wall etc. Act 1996?

  1. What if a developer on sale of a property includes a proviso that the developer on development of adjoining land will not be obliged to follow the procedure?

  2. While we can’t go into the specifics of any given situation, we anticipate that the parties should follow the PWA 1996’s procedures.

    Could the proviso set out who had been appointed as party wall surveyor(s) and (if possible) set out the agreed form of an award, with the signed award to be exchanged alongside other completion documents?
    Alternatively, if the works fall into the section 3(3) scenario referred to above, then could the formal sale agreement itself include the “written consent” referred to?

    Whatever the practical difficulties with these possibilities and whatever the parties’ intentions, it seems to us that the Act does not formally allow for an “opt-out”.

  3. If a party wall award has been subsequently amended by agreement between each neighbours surveyor, and the amendment places an obligation on one party to maintain the gutter, does this agreement need to be made as a deed of covenant in order to register it and bind successors in title or does it have “overriding” status?

    As this is obviously a positive covenant, and if a deed of covenant is required, does this need to be worded in a specific way in order to bind successors in title?

  4. Sean, you are correct that you will need to enter into a Deed of Covenant. A party wall award cannot impose future obligations on either party. The award can only deal with the works to which it relates.

    As positive covenants do not run with the land, you have a choice as to how to attempt to ensure the obligation passes. I suggest you look at PLC Property’s Practice note, Positive covenants in transfers: what to consider? and Toolkit: covenants relating to land. PLC Property also publishes a number of precedent positive covenants, which you may find useful.

  5. Can my neighbours build an extension to their property, which requires the extension wall replacing the current boundary wall, WITHOUT having the Party Wall Agreement in place? Is it an a legal obligation for them to have a PWA in place? Or is the Act there as a best practice guideline to prevent disputes and prevent costly injunctions.
    I have been told that it is optional and that if they do not wish to get a PWA in place there is nothing I can do. Further I have been told that many surveyors find this a frustrating aspect of the law. If the PWA is in place then adherence to the Agreement is a must but it is not 100% essential for there to be a PWA in place at all. Please advise.

  6. A building owner’s obligations under the PWA 1996 are statutory. If the building owner carries out works without complying with those statutory obligations, it will be deprived of the PWA 1996’s protection because it will have failed to comply with the statutory regime and will have failed to engage the PWA 1996 at all.

    Any damage or loss sustained by an adjoining owner (you, in your example) as a consequence of works carried out without first giving notice, obtaining consent or obtaining a valid award under the PWA 1996 is actionable in private nuisance (Louis v Sadiq (1997) 74 P&CR 325). Additionally, the building owner may be liable in trespass. The most common remedy is for the adjoining owner to apply to the court for an injunction.

    We discuss these issues in Practice note, The Party Wall etc. Act 1996 (PWA 1996):Failure to comply with the PWA 1996 and breaches of statutory duty.

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