Party wall notices - are they valid?

What is a Party Wall notice?

In the first instance, for the purposes of this article, I am taking a broad brush to this concept.  The Party Wall etc Act 1996 calls upon owners to serve each other with a number of different notices to suit a range of situations when the have to inform each other of something covered by or concerned with the Act. I will therefore start with principal notices that a building owner, intending to do some work, needs to take into account and decide if any apply to his intentions, what he may get back in response, and when he can then proceed with the work.

Section 1 - new building at the line of junction

If the building owner intends to build at or on the line of junction (the invisible division between his land and that of his neighbour) he will have to serve a notice on that neighbour a month before he wants to start the work.  He then has two options, he can either make a proposal to his neighbour that the new wall is built as a party wall or party fence wall that both parties can subsequently make use of (with no obligation on the neighbour to do so at once) and it will stand at some position astride the line of junction that suits them both.  This is a section 1(2) notice which has a very specific time limit attached to it of fourteen days in which the neighbour is to indicate his consent to the building of the party wall or party fence wall.  He does not have to consent at that time to its exact form of construction or its position astride the boundary.  All he would be doing in giving consent is agree to the wall being a shared wall.  The neighbour has to serve a notice in reply within the fourteen day period indicating his consent to the new wall being a party structure.  He still has at least fourteen days before the works are to commence to dispute anything else about the proposed work.

In the alternative, the building owner without such consent being obtained may proceed in much the same way as if he had actually served a notice under section 1(5) on his neighbour.   This notice simply informs the neighbour that a new wall is to be built at the line of junction that will stand, above ground at least, entirely within the extremities of the building owner's land.   Plainly, the building owner should have the right to build what he likes (subject to other statutory controls) on his own land without interference from any neighbour.  No consent is needed and this notice also runs for one month before he can start work.  Why then, is this notice even needed?  Well, the adjoining owner might be in disagreement as to where the line of junction is.  He might be anxious about the things he has at the edge of his own land being damaged by this work.  Most significantly, having served a notice under either section 1(2) or section 1(5), and in the former not being in possession of a notice indicating consent to the building of a party wall, the building owner will have the right for a further eleven months to excavate his neighbour's land immediately adjacent to the proposed wall and place under that land projecting foundations for his wall that are necessary for the stability of that wall.    He does not need the adjoining owners consent to this and the only conditions are that the projections are "necessary" and that the building owner compensates his neighbour or any occupier of the land for any damage caused to any person effects and property.

Validity of a section 1(2), 1(3) and 1(5) notices

A notice served under section 1(2) or 1(5) must be served on any (affected) adjoining owner.  It must indicate the building owner's desire to build and describes the intended wall.  That is all that the Act has to say on the matter.  The two subsections are identical on this stipulation, which is indeed barren of any useful information that the adjoining owner might want to know.   In practice, notices usually also include a note of the name and address of the building owner (who might not actually live or work at the address where the work will take place). It is customary for a notice under section 1(2) to inform the neighbour of his duty to give a consent to the proposed building of a party wall or party fence wall in writing within fourteen days since the whole purpose of serving  a notice under that subsection is to attempt to achieve a party structure.

In response, a section 1(3) consent notice needs only state the adjoining owner's indication of his consent to the building of a party wall or party fence wall.  The exact name and address of the adjoining owner (who might also not be resident at the adjoining land) is also not specified in the Act.

Despite these very obvious omissions from the text of the Act, it would be reasonable to assume that any notice should at least identify the person who is issuing it, to whom it is intended to apply, and be validated by a signature or other method acceptable at law as being evidence of its intention to be acted upon.  Whether the omission of such fine details would render the notice invalid, as some party wall surveyors may suggest it would be, is unclear.  The intention in the law must be that a building owner must first inform his neighbour of his intention to build at a point that may indeed affect the interests of his neighbour and that in so doing he should be clear about how to deal with any indication of consent or dispute with him that arises.

Provided that these conditions are met, the validation of any notices required by section 1 cannot be reasonably disputed.  The significance of validation is not whether or not the adjoining owner is entitled to dispute the matter, but rather when the notice actually takes effect and when it matures.  There are specific time intervals given that are effective only after a notice is served and if they are to have effect then the notice must itself be effective.

Section 2 - repairs, etc to party wall; rights of owners

All owners with land or premises attached to a party wall, or any structure that is a party structure within the meaning of section 20 of the Act, are entitled to carry out a range of alterations, repairs and modifications to those elements on condition that they give notice to all other owners with land or premises attached to the same party structure.   Under section 2(2), paragraphs (a) to (n) specify a number of operations that may be undertaken to a party structure by any one owner.   It is actually section 3 that regulates the exercise of these rights and requires that the building owner serves notice on any adjoining owner or adjoining owners as the case may be two months before he intends to carry out the work which these rights give to him.

In response, any adjoining owner may, in the first month of such a notice being in effect, serve a counter-notice which, despite its name, is actually a request that the building owner includes in his work such additional works as the adjoining owner wishes for him to do to suit the requirements of the adjoining owner.  It is a complicated way of asking for the building owner to adapt his proposals, at the adjoining owner's expense to suit something the latter would want at the same time the work is carried out.   What can be asked for in a counter-notice is restricted to a few items.

If an adjoining owner does not issue a notice of consent to the building owner's proposals within fourteen days of the notice being served on him, then there is a deemed dispute regardless of whether the adjoining owner is disputing anything in reality at all.  Likewise, if the building owner does not consent to a counter-notice within fourteen days of its service on him, a dispute is deemed to have arisen.

Validity of a section 3 party structure notice

The Act is somewhat more prescriptive about what must be included in a section 3 notice.  It must contain the name and address of the building owner (the owner who intends to carry out the work); the nature and particulars of the work; and the date on which the work is proposed to commence.  There is a further stipulation on particulars of the work where special foundations (as defined in section 20) are proposed to be constructed as part of the work requiring plans, sections and details of these.

Again, beyond those stipulated points the Act is silent on any other feature required in a notice.  A valid notice therefore contains at least the first three things listed above, and the fourth if special foundations are proposed, but whether it needs any other information to make it  effective in respect of the time periods that apply is unclear.  As with a notice under section 1, it would be reasonable to expect any such notice to be addressed to the person it applies to, and the person who issues it to be identified, and be validated with a signature perhaps. 

It is difficult to see the argument put forward by some party wall surveyors that the specific rights listed in section 2(2) must each be precisely enumerated, but certainly it is a convenient and clear way of calling to attention the rights being specifically exercised as it is unlikely that many works will encompass them all, and some may only involve just one or two.  However, one could argue that without identification of the specific rights being invoked, the stipulation that the notice must state the nature of the work cannot be met.  However, insisting that the individual paragraphs are enumerated in a notice may be unnecessary if the notice is nonetheless giving in the description enough guidance on the actual rights being invoked.

Validity of a section 4 counter-notice

A counter-notice has somewhat more stringent obligations.  The adjoining owner must detail his requirements rather particularly against a restricted list of things he can of right ask to be considered for inclusion.  Significantly, the adjoining owner must give plans, sections and particulars of his requirements with his notice.  He has no right to make these requests without them. 

Apart from the limit on time when the counter-notice is to served on the building owner, there are no requirements for it to acted upon if the building owner cannot reasonably incorporate them into his work and the building owner does not have to give any notice to the adjoining owner warning him that he cannot accommodate some or all of his requirements.

It therefore appears that a counter-notice can only be valid if it is particularly detailed and, in any event, it needs to be promoted as part of a dispute if it is to stand any chance of being acted upon in the course of the building works.

Section 6 - adjacent excavations

There are two pairs of criteria when the general provisions of this section are effective, they are the three-metre and six-metre rules specifically.  To be certain or not whether they will apply to an actual proposal to excavate within such horizontal limits of any adjoining structure not owned by the building owner, it is necessary to be absolutely certain of the depth of the foundations under those adjoining structures.  This is often unknown and will involve a lot of investigative work in one form or another to be certain of the answer.

The section reflects provisions previously made in the London Building Acts that became necessary with the increasing use of basements for new buildings as the city became more densely populated.  There was a situation where developers who wished to build new properties with basements were working with sites adjacent to older buildings that were supported on shallow footings close to the surface of the ground.  Until the forerunner to this section was created, there was no obligation upon an adjoining owner to allow a developer to underpin a building before excavating his own foundations or basement.  This caused problems with the separation of adjacent buildings and in order to rectify this problem, legislation was introduced that gave the right to the developer to underpin or otherwise safeguard the adjoining structure in advance to reduce the risks of collapse or other damage.  Such a right was reflective too, if a developer did not propose to do advance support work but the adjoining owner expressed his desire that they should be undertaken in any case, then he could demand that this is undertaken.   The result was often a difference of opinion on what needed to be done, at the building owner's expense, and hence this was passed to the surveyors to determine by award.

Validity of a section 6(5) notice

Where the three-metre or six metre rule applies, the building owner must serve a notice on any owner a structure within the catchment area and depth provisions of those rules with a notice which must indicate whether the building owner intends or not to underpin or otherwise safeguard the other owner's structure.  For the purposes of the Act, all such owners are "adjoining owners" even if they are not immediately adjacent to be land of the building owner as they must be in the case of notices under sections 1 or 3.

The notice must be accompanied by plans and sections showing the site and depth of any excavation the building owner proposes to make; and if he proposes to erect a building or structure, its site.

Once again the formalities of name and address of the building owner, the name and address of the adjoining owner and, where different, the site affected by the proposals, and validation by signature or other means is not stipulated.

Section 8 - rights of access

Notices must be served at least fourteen days before access is needed onto an adjoining owner's land or premises to enable the building owner to undertake any work to which the Act applies, except in emergency where a police constable or other officer is in attendance.  

Perhaps the most foreboding of all of the notices that can be served on an adjoining owner, this one entitles the building owner, his agents and workmen to enter and remain upon, during normal work hours (which are not specified in the Act and therefore open to interpretation according to circumstances) the adjoining owner's land and premises and to move or set aside any possessions or other property of any adjoining owner or occupier to enable the carrying out of work pursuant to the Act.

Validity of a section 8(3) notice

The Act stipulates that any notice must be served on the owner and the occupier and must give such notice of the intention to enter as may be reasonably practicable in an emergency or otherwise not less than fourteen days ending with the day of the proposed entry.

In effect, the notice merely needs to state that it is intended to enter on a specified date normally at least fourteen days beforehand but it need not state the duration and can thereafter presumably remain valid until completion of the relevant work.

Section 15 - Service of notices etc

In all instances, notices must be served under the Act, and to this extent there is consistency in the Act as service is explained at section 15.  This section was amended in April 2016 to include service by electronic means which up until then was informally accepted where it suited the parties but had no validity at law.   The statutory instrument appended to the Act rectified this situation.

Any notice cannot be valid, therefore, unless in addition to the requirements given in the foregoing explanations, it is served by hand delivery to the person it must be served upon; or by sending it by post to the last known home or business address of the person in the United Kingdom; and in the case of a body corporate delivery by hand or by post to the secretary or clerk at the registered address of the body corporate.

Where the identity of a person or owner is not known or the whereabouts is not known, service can alternatively be effected by addressing the notice to "the owner" of the adjoining building and by affixing it conspicuously to the premises.

Electronic communications may now be used, with the consent of the recipient having been first obtained, as an alternative method of delivery.

Conclusions

Under the provisions above it can be seen that the Act is somewhat lacking in assistance when describing what is a valid notice in each of the circumstances one is required.  Consequently, accusations of a notice being "invalid" must be used sparingly and in many cases, although the notice presented may be lacking in information that a reasonable person would have anticipated should be included, and perhaps written in a style that is both informative and helpful to the recipient, the notice is effective and the time constraints applicable to a particular notice can be construed as operable at the time of service.

If a notice is challenged as not being valid, it does not mean that the notice was not effectual in giving rise to the necessary appointment of surveyors to deal with any dispute, since a notice is not a constituent requirement of the rules set out in some detail in section 10.   It is significant that within section 10, parties and surveyors submit requests to each other for action by a certain date and notices are not described, even though the typical "ten day request" is often referred to as a "ten day notice".  However, the term "serve" is used to effect those requests and to effect the award that determines matters in dispute.

Perhaps a notice can, in effect, only be "invalid" if it is not effectually served in accordance with section 15.  At least the requirements in that section fill in some the items not specified in the sections calling for specific notices to be served.