PLC Construction has introduced a new regular feature: “Ask the Team”. This will be based on questions you have asked. We edit the questions and answers, where appropriate, to maintain anonymity.
Our first Ask the Team suggests an answer to the question “who is a building owner under the Party Walls etc Act 1996?”
Question
In your Practice note, Party Walls etc Act 1996 (PWA 1996), you explain that the PWA 1996 was introduced to provide a framework to enable neighbours who share a boundary (usually a party wall or structure) to carry out building works. This is achieved by providing a dispute resolution procedure to protect the interests of the adjoining owner, while giving the building owner the rights it needs to carry out building works. This is because building works by a building owner can cause damage to an adjoining owner’s buildings and interrupt the adjoining owner’s own use and enjoyment of the party wall or structure. The PWA 1996 defines building owner and adjoining owner.
Does the definition of building owner extend to a party with a reversionary interest, entitled to receive only a nominal rent or profit?
Answer
In short, probably not.
What is important under the PWA 1996 is who wishes to carry out works that will affect an adjoining property.
The definition of “owner” and “building owner” comes from section 20 of the PWA 1996. The definition of “owner” is non-exhaustive and includes:
- The owner of the land.
- A reversioner entitled to receive the rents or profits of the land.
- Someone in possession of the land other than as a mortgagee or a tenant of less than a year.
A “building owner” is an owner of land who wishes to exercise rights under the PWA 1996.
If the reversioner is in receipt of a nominal rent, it is likely that there is someone else in possession (such as a long term tenant). In that situation, both the reversioner and the long term tenant will be “owners”, but only the party that wishes to carry out work to the property will be the “building owner” for the purposes of the PWA 1996.
Therefore the first question to ask is “does this party have the power to carry out works?”, that is, do they have sufficient control of the property as the reversioner to be able to carry out works which the PWA 1996 relates to? It is unlikely that a party with enough control over the property to carry out works would fall outside the definition of owner and the definition of owner is probably non-exhaustive for that very reason. Equally, it is unlikely that a reversioner with an entitlement to a nominal rent only would be in a position to carry out building works.
Do you have any comments?
You may contact us at constructionfeedback@practicallaw.com or post a comment.
Tim Reid’s note on party walls says that it is “indicative” that awards are personal to the original parties.
In practice, properties change hands before and immediately after developements eg a sale to a forward funder, and a sale immediately on practical completion of a development. My experience is that new party wall awards are rarely if ever entered into and people assume the original awards hold good. I suspect that Tim’s own firm’s property team slavishly lists all party awards affecting a property, on a sale, and makes buyers take subject to them and to indemnify the seller – if they were truly personal then that would not be necessary!
Nowhere in the Act does it expressly say that awards are personal. The building owner is simply someone with an interest in land who wishes to carry out work. If the first owner, who enters into the award, does not implement the intended work why is a successor who does the work not within this definition? It seems illogical to simply replicate awards when ownerships change.
It works both ways – why should a building owner cough up more fees if the adjoining owner changes during a development? Successor adjoining owners will want the benefit of the duties/indemnities in an award/under the Act without the trouble of changing the name on a document.
What stops an adjoining owner taking an assignment of the benefit of the award – it’s a chose in action and there’s nothing in the Act to say it cannot be assigned like any other award?
The Act clearly sets outs duties of a building owner and surely the building owner – whether original or successor – is bound by the Act and the expression of the aAt in each specific award. Why cannot a building owner assign the benefit of the award? I can see an argument that an original party remains liable under privity but it seems to defy common sense (and practice on the ground) for the benefit of awards not to be assignable.
Am I right in thinking the point (that is the position of successors generally) has never been tested in court?
Sorry lots of questions!
Greg
As you mention, this issue is discussed in Tim Reid’s note, The Party Wall etc. Act 1996 (PWA 1996): Practical issues arising from the PWA 1996: What happens when buying a property and a party wall award has already been made?. The same issue is also discussed in his blog post, Buying a property? Don’t forget about the Party Wall Act 1996.
As far as we are aware, the position of successors in title has not been directly tested by the courts. However, that is not to say that a county court hasn’t dealt with the matter and it has gone unreported.
Stephen Bickford-Smith and Colin Sydenham’s book, Party Walls Law and Practice (third edition, Jordans) devotes a whole chapter to successors in title (chapter 14). It does not provide a direct answer to your question, but discusses whether the rights created by the Party Wall Act 1996 are personal and whether those rights are assignable. That book concludes that:
I have been served notices under the PWetcA 1996. The procedure has got so far but no award is completed. The owner next door who wants to do the work has sold to a new owner. Does the new owner have to start again and serve new notices. Thank you.
Raymond
I’m afraid we can’t answer individual questions or give advice on this blog. Do have a look at Tim Reid’s post Buying a property? Don’t forget about the Party Wall Act 1996, as (although it looks at this issues from a different perspective) that may help you.
When dealing with the Party Walls Act 1996 and specifically reference to neighbouring buildings and excavation within either 3 or 6 metres thereof. Is a party boundary wall between two unattached dwellings considered to be a neighbouring building? The position in this case is that the boundary wall (party responsibility) is within one metre of the proposed extension whereas the nearest neighbouring structure is a garage which is four metres at its nearest point. Furthermore the garage sits in an elevated position and its foundations are well beyond the level of the base of the boundary wall. Any comments would be appreciated.
Hi Carol
We can’t answer individual questions or give advice here, but I’d suggest taking a look at the following sections of Practice note, The Party Wall etc. Act 1996 (PWA 1996):
As it seems likely that the PWA 1996 has to be complied with you may find Standard document, PWA 1996: three or six metres notice (adjacent excavations) helpful.
What is the situation if a contractor working for the Environment Agency excavated about 1m from building foundations in an unadopted lane adjacent to properties. The EA is not the owner of the lane – the ownership is not clear but the building owners are responsible for its upkeep. Does the EA or its contractor have to serve Party Wall notices? What is the situation if they were working on a public highway?
As we explain in Ask, Is a statutory undertaker caught by the Party Wall etc. Act 1996? it is our understanding that generally a statutory undertaker is not caught by the provisions of the PWA 1996, as works that a statutory undertaker usually carries out are temporary in nature and the statutory undertaker is not an owner, as defined by section 20 of the PWA 1996.
That said, if the statutory undertaker intends to build a structure such as a wall, that structure will be on land and, in those circumstances, the statutory undertaker may well fall within the definition of building owner and the wall may well fall within the definition of a party wall, as defined in section 20 of the PWA 1996. If so, then the Act’s provisions will apply.
See Practice note, The Party Wall etc. Act 1996 (PWA 1996) for a discussion of the definitions, notice requirements and how the dispute process operates.
Regarding the issue of a Party Wall Notice, does the ‘Owner’ have to be the same person (or company) as listed on the Land Registry?
The adjoining semi-detached house has been bought and is being refurbished with an extension added. One of the people involved has told me they intend selling it on, and he is named as the owner on the notice, however I am concerned that should something major go wrong and I need to take legal action, he could simply say he is not the owner. Would any notice served be invalidated under these circumstances, or would I still be protected under the act?