Question for Conveyancer - Party Walls

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thin and crispy
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Question for Conveyancer - Party Walls

Post by thin and crispy » Mon Aug 10, 2009 3:45 pm

Hello Conveyancer. If you happen to read this, I would be grateful if you could clarify something for me in relation to party walls.

On another thread (here), the OP owned a garage to which his neighbour had attached a structure, described as a "lean to". I suggested that if the lean-to had been there for some time, the garage wall might have effectively become a party wall. You said this wasn't the case:
Conveyancer wrote:If you own the whole of a wall and someone attaches something to it or incorporates it into another building, that cannot turn it into a party wall.
I appreciate the correction but I must admit I don't fully understand the basis for it. As I am presently dealing with a similar issue, I would be grateful if you could expand upon your statement a little.

Specifically, how do you define a party wall: is it simply a wall that is covered by the Party Wall etc. Act, or does the term "Party Wall" mean something else?

Also, I have a few questions on the particular situation that I am dealing with - which can be sumarised as follows:

Mr A owns a bungalow, the side wall of which abuts, but does not straddle, the boundary line. Then, the owner of the adjoining land (Mr B) extends his house by attaching his single storey extension to Mr A's wall, without Mr A's explicit consent. Assuming that Mr A does not raise any formal objection to this use of his wall:
  • (a) Will Mr B eventually gain any rights (e.g. of support) over the wall?

    (b) Are there any circumstances (short of an agreement between Mr A and Mr B) in which the wall could become a party wall?

    (c) If the answer to question (b) is "yes", would the whole length of Mr A's bungalow wall become party wall, or just the stretch that is common to the two buildings?

    (d) If it never becomes a party wall, presumably it will become an "etc." under the Party Wall etc. Act, 1996? By that I mean, can Mr B claim that Section 2 of the Act applies, so that he can raise the wall to build a second storey?
I would be grateful for any clarification you can give.
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Post by ukmicky » Fri Aug 14, 2009 10:36 pm

As the conveyancer hasn't replied may i try,i could be wrong but dont think so.
(a) Will Mr B eventually gain any rights (e.g. of support) over the wall?
Mr B will gain a right to support if permission is given or if the wall is built using the other wall as support and no legal objection made to prevent it. However if the extension was built and attached to the wall without knowledge and support is being gained in a covert manner then i cant see B gaining any rights of the support.

If it went to court the court may allow it to remain but award damages to A. Mr B cannot at present stop A from demolishing his his wall leaving B's extension without a wall.
Are there any circumstances (short of an agreement between Mr A and Mr B) in which the wall could become a party wall?
No
(c) If the answer to question (b) is "yes", would the whole length of Mr A's bungalow wall become party wall, or just the stretch that is common to the two buildings?
Its not a party wall
(d) If it never becomes a party wall, presumably it will become an "etc." under the Party Wall etc. Act, 1996? By that I mean, can Mr B claim that Section 2 of the Act applies, so that he can raise the wall to build a second storey?
No part of the original wall is a party wall, it is wholly on A's land. Mr B cant do anything to it.

I Believe i am correct and assume if I'm not conveyancer will answer to correct me.

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Post by Conveyancer » Fri Aug 14, 2009 11:34 pm

Forget about the Party Wall etc Act if you want to know what a party wall is. Any definition of "party wall" in the Act is solely for the purpose of the Act.

A party wall is simply a wall that is jointly owned. Not jointly owned in the same sense that, for example, husband and wife jointly own a house, but in the sense that one owner owns one half and the other owner the other.

A wall will be a party wall if it is built straddling a boundary. It will also be a party wall if it is declared to be a party wall in some title document.

External walls of buildings are rarely party walls; it makes no sense for them to be.

Internal boundary boundary walls between semi-detached and terraced properties are, in the absence of anything on a title to the contrary, usually deemed to be party walls.

If a building of any sort is constructed using the external wall of another property as one of its walls then that the ownership of that external wall does not change. There is no possibility of the owner of the later property claiming any interest in it by adverse possession as there is no meaningful way in which he can be said to be in possession of the wall.

For the record, the reverse situation applies. If, say, an end terrace property is demolished so that what was the internal boundary wall becomes an external wall, that wall remains a party wall.

To answer your questions:

(a) Will Mr B eventually gain any rights (e.g. of support) over the wall?

Yes, unless Mr A does something to prevent it.

(b) Are there any circumstances (short of an agreement between Mr A and Mr B) in which the wall could become a party wall?

No

(c) If the answer to question (b) is "yes", would the whole length of Mr A's bungalow wall become party wall, or just the stretch that is common to the two buildings?

-

(d) If it never becomes a party wall, presumably it will become an "etc." under the Party Wall etc. Act, 1996? By that I mean, can Mr B claim that Section 2 of the Act applies, so that he can raise the wall to build a second storey?

Where exactly in section 2 does it say that a building owner is entitled to raise a wall that is wholly on the land of his neighbour?
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Post by thin and crispy » Sat Aug 15, 2009 4:16 pm

Thank you both for your replies. They have been very helpful; and things are much clearer to me now.

Conveyancer, may I ask two final questions?

Firstly, how would I reconcile the following statements:
1. Conveyancer wrote:Internal boundary boundary walls between semi-detached and terraced properties are, in the absence of anything on a title to the contrary, usually deemed to be party walls.
2. Conveyancer wrote:If a building of any sort is constructed using the external wall of another property as one of its walls then that the ownership of that external wall does not change.
If Mr B builds against Mr A's external wall doesn't it become an internal wall of a (now) semi-detached property and therefore deemed to be a party wall (re: your statement 1)? Or is its status affected by the fact that Mr A did not give consent?

Secondly, you say that Mr B would eventually gain some right of support over the wall unless Mr A does something to prevent it (which he hasn't). So what could Mr A do if he wished to demolish his bungalow to redevelop his land? Would the wall in question have to remain (taking up a foot-wide strip of his land) even though it serves no useful purpose to Mr A. And, if so, would Mr A have to pay to have Mr B's roof edge finished properly (e.g. with extra eaves and guttering further encroching into Mr A's airspace).


Finally:
Conveyancer wrote:Where exactly in section 2 does it say that a building owner is entitled to raise a wall that is wholly on the land of his neighbour?
That question arose as a result of my misuderstanding. I appreciate now that it didn't make sense. Thanks for the clarification.
.
Prejudice, not being founded on reason, cannot be removed by argument. Samuel Johnson.

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Post by Conveyancer » Mon Aug 17, 2009 10:56 pm

thin and crispy wrote:Firstly, how would I reconcile the following statements:
1. Conveyancer wrote:Internal boundary boundary walls between semi-detached and terraced properties are, in the absence of anything on a title to the contrary, usually deemed to be party walls.
2. Conveyancer wrote:If a building of any sort is constructed using the external wall of another property as one of its walls then that the ownership of that external wall does not change.
If Mr B builds against Mr A's external wall doesn't it become an internal wall of a (now) semi-detached property and therefore deemed to be a party wall (re: your statement 1)? Or is its status affected by the fact that Mr A did not give consent?
In the context of what I was saying:

"External wall" means a wall which when built was intended to be an external wall.

Consent is immaterial. What was an external wall still belongs wholly to Mr A since it is wholly on his land. Building a new building that uses that wall does not move the boundary.
thin and crispy wrote:Secondly, you say that Mr B would eventually gain some right of support over the wall unless Mr A does something to prevent it (which he hasn't). So what could Mr A do if he wished to demolish his bungalow to redevelop his land? Would the wall in question have to remain (taking up a foot-wide strip of his land) even though it serves no useful purpose to Mr A. And, if so, would Mr A have to pay to have Mr B's roof edge finished properly (e.g. with extra eaves and guttering further encroching into Mr A's airspace).
I suppose in theory Mr A could remove the wall leaving the side of Mr B's bungalow open, but I doubt in practice this could be done without imperilling the structural integrity of Mr B's property. In practice therefore he would have to leave the wall and, if it proved necessary, provide additional support. However, Mr A is under no obligation to maintain his bungalow so that it continues to support Mr B's bungalow, though Mr B may enter onto Mr A's property to effect essential repairs.

Whilst many people may build lean-tos and extentions using a neighbour's wall, it is an unwise man who builds anything significant without obtaining the necessary easement of support.
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Post by thin and crispy » Tue Aug 18, 2009 12:39 am

Thanks Conveyancer for the detailed reply. Now that you've explained the fundamantals it all seems quite logical and straightforward. It was just those couple of misunderstandings which had thrown my thought processes into disarray. I can now advise my friend accordingly.

Thanks again for taking the time to clarify this for me.
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Post by wallace » Tue Jan 26, 2010 8:33 pm

I understand that over time section 2 does apply and Mr B will have some control over the bungalow wall if nothing is done to stop him.

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Post by wallace » Wed Jan 27, 2010 1:08 am

Conveyancer wrote:
To answer your questions:
.
.
.
(d) If it never becomes a party wall, presumably it will become an "etc." under the Party Wall etc. Act, 1996? By that I mean, can Mr B claim that Section 2 of the Act applies, so that he can raise the wall to build a second storey?

Where exactly in section 2 does it say that a building owner is entitled to raise a wall that is wholly on the land of his neighbour?
This is implied in section 2(e) and the Party Wall Act's definition of a party structure?

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Post by ukmicky » Wed Jan 27, 2010 10:27 pm

I understand that over time section 2 does apply and Mr B will have some control over the bungalow wall if nothing is done to stop him.
Control as in a right of support yes, if action is not taken quick enough and provided it is not a covert use.

Control over as in shared ownership and the rights that go with shared ownership no.

Definition
(a)a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and

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Post by wallace » Thu Jan 28, 2010 1:40 am

ukmicky wrote:
Control as in a right of support yes, if action is not taken quick enough and provided it is not a covert use.

Control over as in shared ownership and the rights that go with shared ownership no.

Definition
(a)a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and
I agree if you are talking about common law party wall rights but the Party Wall Act doesn't care much about ownership of the wall or position of the boundary.

The relevant party wall definition is "(b) so much of a wall not being referred to in paragraph (a) above as separates buildings belonging to different owners".

Thus the bungalow wall in question is a party wall type (b) and section 2 of the Party Wall Act applies. Mr B has more control over the wall under the Party Wall Act than he does under common law.

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Post by ukmicky » Thu Jan 28, 2010 11:09 pm

The relevant party wall definition is "(b) so much of a wall not being referred to in paragraph (a) above as separates buildings belonging to different owners".
And the above is to cover a party wall built as a single structure astride the boundry line between two buildings. Normally built at the same time that both buildings were built in order to support both buildings.

Adding something to a neigbours wall will not allow it to become a party wall.

When parliment legislates and new acts like the party wall act come into force it is left to the courts to determine what was actually meant when when the act was drafted and how it should be interperated.

It would be impossible for the wording of the act to specifically cover every possible situation and therefore it is left to the courts to interperate what was meant when the act was drafted and how or if it should cover a new situation that has presented itself to the court .

Which is when courts set precedents that later cases follow.
Common law and equity is based on precedents set by the courts.

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Post by wallace » Fri Jan 29, 2010 9:52 am

ukmicky wrote:
The relevant party wall definition is "(b) so much of a wall not being referred to in paragraph (a) above as separates buildings belonging to different owners".
And the above is to cover a party wall built as a single structure astride the boundry line between two buildings. Normally built at the same time that both buildings were built in order to support both buildings.
How does a "party wall type (b)" in the government's explanatory bookleton the Party Wall Act fit your interpretation of paragraphs (a) and (b)?
Party wall type (b)

A wall is also a "party wall" if it stands wholly on one owner's land, but is used by two (or more) owners to separate their buildings (see diagram 4).
An example would be where one person has built the wall in the first place, and another has butted their building up against it without constructing their own wall.

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Post by Conveyancer » Fri Jan 29, 2010 1:37 pm

wallace wrote:
Conveyancer wrote:
To answer your questions:
.
.
.
(d) If it never becomes a party wall, presumably it will become an "etc." under the Party Wall etc. Act, 1996? By that I mean, can Mr B claim that Section 2 of the Act applies, so that he can raise the wall to build a second storey?

Where exactly in section 2 does it say that a building owner is entitled to raise a wall that is wholly on the land of his neighbour?
This is implied in section 2(e) and the Party Wall Act's definition of a party structure?
I do not think so. That only gives the right to demolish and rebuild an existing party structure. There is no right to raise a wall that is wholly on the land of a neighbour.
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Post by ukmicky » Sat Jan 30, 2010 1:03 am

I'm taking a step back
I agree if you are talking about common law party wall rights but the Party Wall Act doesn't care much about ownership of the wall or position of the boundary.
The above statement is wrong because if you do not follow the act with its procedures and send the correct notices etc the PWA can not be used to ride roughshod over someones common law rights.

So

If you wish to build on your neigbour land or use his wall allowing you to gain any rights under the PWA you must send a notice to your neigbour .

Should he not respond you must then build wholly on your own land and therefore cant fix to your neigbours wall.

Should he respond and still not give you permission to build on his land or wall you must then again build wholly on your land.

If you then continue and fix to your neigbours wall you have not built wholly on your land you have not theirfore followed the Act and theirfore the PWA can not be used to supersead someones common law rights.

Ok you could take it further and force your neigbour to take part in the procedure if he refuses to but in the end the award will not include anything that will allow the use of a neigbours wall where there was no previous right.
So once again in order to follow the party wall procedure for its powers to supersead someones common law rights you will have to build wholly on your land and not use his wall.

Their is no way for anyone to gain rights to the wall like you are thinking except in cases when the owner of the wall legally gives away rights over it in writing.

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Post by wallace » Sat Jan 30, 2010 10:46 pm

ukmicky wrote:I'm taking a step back
So now you agree with me that paragraph (b) defines a party wall type (b).
ukmicky wrote:
I agree if you are talking about common law party wall rights but the Party Wall Act doesn't care much about ownership of the wall or position of the boundary.
The above statement is wrong because if you do not follow the act with its procedures and send the correct notices etc the PWA can not be used to ride roughshod over someones common law rights.
I believe you are taking what I've written out of context. I was assuming that the PWA is being followed instead of falling back to common law rights where in fact Mr B doesn't have many which is what I was agreeing with you about. I'm sorry if I wasn't clear on this but I understand how the PWA works cf. common law rights.
ukmicky wrote:So

If you wish to build on your neigbour land or use his wall allowing you to gain any rights under the PWA you must send a notice to your neigbour .

Should he not respond you must then build wholly on your own land and therefore cant fix to your neigbours wall.

Should he respond and still not give you permission to build on his land or wall you must then again build wholly on your land.

If you then continue and fix to your neigbours wall you have not built wholly on your land you have not theirfore followed the Act and theirfore the PWA can not be used to supersead someones common law rights.

Ok you could take it further and force your neigbour to take part in the procedure if he refuses to but in the end the award will not include anything that will allow the use of a neigbours wall where there was no previous right.
So once again in order to follow the party wall procedure for its powers to supersead someones common law rights you will have to build wholly on your land and not use his wall.
Yes this is correct but not the point of the discussion. Mr B built on his neighbour's wall (there was no point in him following the PWA as he had no rights under it to begin with) and Mr A (his neighbour) acquiesced. Mr B now has a right of support and there is a party wall type (b) under the PWA with its corresponding rights under section 2 assuming Mr B follows the PWA to the letter to exercise these rights.
ukmicky wrote:Their is no way for anyone to gain rights to the wall like you are thinking except in cases when the owner of the wall legally gives away rights over it in writing.
My thinking is as in my previous paragraph. If Mr B or his successor exercises rights under the PWA section 2 it could be difficult to stop as there is a party wall type (b) under the PWA.

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