Party Wall Matters with Michael Kemp


Host:     Welcome to the Cardoe Martin Podcast, Building Surveying for Professionals.  Now in Episode 2 we are going to chat with Michael Kemp, first things first though the quick-fire round, a few questions that Michael hasn’t seen yet but I’m sure he’s going to enjoy.  So, Michael, welcome, thanks for coming along.  What I want to know is, you have got about a minute or so to answer these questions, top five favourite things about building surveying?  Go


MK:       Oh top five, top five, well No. 1 is getting out and about, No. 2 seeing all sorts of interesting buildings and all the interesting people that are in those buildings and often it’s the people who may more interesting than it is the buildings.  Flexibility of the work you can work at home, you can work in the office and you are working on site and out and about a lot of the time, and finally when you’re getting towards the end of your career as I surely am then the ability to be able to slow down a bit and do some things because people always want experienced individuals is also a big plus. 


Host:     Nice one.  No. 1 thing you know would have been useful when you started out?


MK:       Oh well that is difficult, I do not know, I can’t think, No. 1 thing that would have been useful to know.


Host:     Top of your mind.  Not gone into it or?


MK:       More no, no, I haven’t definitely gone into it, I think, I can’t answer that one, sorry about that. 


Host:     That’s alright we’ll skip on.  No. 1 thing you get asked all the time by clients and customers?


MK:       How much is my house worth, I’m a building surveyor I don’t know about value.


Host:     That’s good.  And favourite music track, album, radio channel to listen to when you’re doing a survey or write reports and what’s special about it.


MK:       God, you know I could not listen to music anymore whilst doing work, it would just distract me too much, but once I’ve finished if it’s been a bad day it would have to be something like Metallica or Meatloaf, if it’s been a good day, it could be almost anything.





Q1 @ 2m:04s – My neighbours are renting; do I need to serve notice on them for works I want to do?


Host:     Well, thank you very much for that Michael that’s a really good job and so I think we’ll move into the questions now so thinking about neighbours, so my neighbours are renting do I need to serve notice on them for works I want to do?



MK:       Well, if your neighbour is a tenant with an ordinary rental tenancy where the original agreement was less than a year then the answer is no, you would need to serve notice on the long leaseholder and the freeholder if indeed there is a long leaseholder.  If a tenant has more than one year you probably need to serve a notice on them as well although it is not entirely certain that that is the case because case law and the Act is not perfectly clear.  Although rental tenant is not entitled to a notice if it’s a short tenancy their interests are still protected in some respects under the Act e.g. their still liable for compensation for loss and damage. 


Q2 @ 2m:56s – I am a renter, and my landlord has agreed to let the neighbours next door do works but they have caused damage to my property. What do I do?

Host:     So I’m a renter and my landlord has agreed to let the neighbours next door do works but they’ve gone ahead and they’ve caused damage to my property, now I’m sure this happens all the time but it’s really kind of irked me what do I do about it?


MK:       Well although a rental tenant is not entitled to a notice in most circumstances their interests are still protected in some respects under the Act and there are specific references to occupiers as opposed to owners, so for example you would still be entitled to compensation for loss or damage.  So the first thing you should do is to immediately notify the neighbours and your landlord and ask for proposals to remedy the damage or to compensate you.  Be sure that it is your property rather than the landlords that is damaged.  This area is covered under Section 7 of the Act which covers loss and damage and compensation as an occupier you would not normally be entitled to appoint a Party Wall Surveyor so would need to deal directly with the neighbour or your landlord.


Host:     Is that normally an easy process, that sounds kind of difficult in getting hold of the landlord they’re not particularly responsive generally are they so?


MK:       Well it can be but usually if there is damage to the occupier’s belongings cos usually as an occupier you don’t have much responsibility for the premises overall and even if there is damage to your decorations there will normally be damage to the structure as well, the plaster or the walls, so your landlord would be interested in getting that sorted out because it will be the neighbour’s responsibility so I think normally they would be, and similarly a neighbour told that there is damage, despite what people might think usually are keen to resolve that, because they would have an eye to problems it might cause them in the future if there was an outstanding dispute and they tried to sell the property.


Host:     That’s an interesting point at the end there, yeah, so it will all culminate in a couple of years if they don’t deal with it now. 


MK:       Indeed.



Q3 @ 4m:58s – What are ‘security for expenses’ and when do I need this?

Host:     That is useful. So, Michael what are security for expenses and as a bit of a layman or even a professional I am sure there’s people out there who’d like to know why they need this?


MK:       Yep so security for expenses is something that the Act provides for at Section 12 and what it means that if works are being done to a property next door and there is concern that there might be works that are left incomplete, or even just a concern that what would happen if something dreadful happened and the owner died and couldn’t complete the works.  What protection would the neighbour need and what about if serious damage occurred so this is a procedure where you can ask for security which normally would be a money sum, to be placed in an account before works starts and to be released back to the developing owner at the end of the works subject to any deductions that may be considered reasonable and necessary to cover damage or completion of works by the neighbour. 


Host:     So it’s kind of like one of those, I if rent a property and they take and put into Escrow for me it’s kind of almost like a mini account then where people.


MK:       It is very, very much like that yes, it can be a little wider than that in that security is not specifically defined, it nearly always uses to be just a sum of money but nowadays there are some quite sophisticated insurance products and other ways of protecting the neighbour.  It has even been said to me that if this gives you some kind of hold over the neighbour or the developing neighbour to ensure that they do, do what they are supposed to do and it has even suggested that you could take control of their Maserati or their fine wine collection so they knew, that if they didn’t get things right that suddenly it was very special to them, more special then even money might be a risk. 


Host:     So is that the kind of stick/carrot approach, has that been in place for many years or is this something that’s only come about as the people have, maybe things have got busier and people have maybe got a little bit more agitated about property and things and that’s why it’s happening now?


MK:       That’s a very interesting question I mean the short answer is yes, the provision has always been there for many years in predecessor legislation certainly for 80 years and I think probably longer than that, but it’s only been used extensively in more recent years and it’s a consequence of the rather invasive and potentially risky trend towards largescale basement excavation under buildings where it is perfectly straightforward to do that kind of work properly and without causing any real problems but it is equally very easy for it to go wrong if someone just doesn’t do the right thing, and so there’s a lot more concern.  You hear of very high-profile stories about building collapses, and they always hit the front page of the Evening Standard, you never hear about the dozens and dozens or hundreds of jobs which broadly speaking go ahead without any problems.  People therefore are more attuned to security now then they might have been in the past.


Host:     And if we’re using those examples of, they tend to be around the posh areas don’t they, so the Knightsbridge and Regents Parky type places of London, I am assuming that there must be a huge amount at stake for this security, can you discuss the largest sum that you’ve come across for the security for expenses?


MK:       Well, the difficulty here is that the security really is against what might occur but more importantly and more universally held, it’s against what might happen if the works are not complete and what might need to be done to make the neighbouring premises safe or reduce any risk.  So, if someone’s dug a blooming enormous hole next door, the simplest thing is often simply just fill it back up again with aggregate or whatever, or to put some props in and so that kind of work it doesn’t really matter how valuable the property is, there’s a limit to how much you can spend on putting in props and filling up holes so it’s not necessarily enormous.  When you start to look at risks of damage, which is a controversial area because many people think that if you’re concerned that there’s going to be a lot of damage to the neighbouring property then perhaps there is something wrong with the scheme in the first place and the idea that you can hold security for speculative damage, people saying if you do things really, really badly my entire building will fall down, I’ll lose all my possessions and I’ll have to rent somewhere else for three years while it’s sorted out and therefore I want tens of millions, that really is not an argument that should be sustainable and would largely be resisted.  So in terms of largest sums, the largest sum I’ve heard of that has been agreed, as opposed to requested, is around about the million pound mark, but that is an unusual situation, we need to keep this in context, it’s much more usual for sums in the £40,000/£50,000 to be agreed.  You also started by saying that, is this not something that really applies to Knightsbridge and Regents Park and all these expensive fancy areas, these kind of schemes, it’s surprising how widespread they are basically to create a basement under a standard terraced house might cost you a couple of hundred thousand pounds and if it’s a two storey house that increases your floor space by 50% which adds a lot to the value of the property and therefore these schemes actually happen relatively within London in areas of relatively modest property, because obviously in London relatively modest property is still very immodestly priced.  Those sorts of schemes are easy to undertake in certain types of sub-soil, London is blessed or cursed, depending on your point of view, with soils that are quite easy to dig basements into to but so are some other parts of the country and I know of a lot of large high value basement schemes that take place in places such as Oxford, Birmingham and the North West so it’s not just a London centric issue.



Q4 @11m:22s – What is special about ‘Special foundations’?

Host:     Again, great answer, thank you very much for that.  Right so what I am interested in Michael what’s so special about special foundations?


MK:       Ah well, special foundations, anything could be special about a foundation but in the context of the Party Wall Etc. Act there is a definition, and it says, “special foundations mean foundations in which an assemblage of beams or rods is employed for the purpose of distributing any load”.  So, what that means in simple language is concrete foundations that incorporate steelwork to strengthen them.  The reason that they need to be mentioned in the context of party wall work is that where you are installing largescale reinforced foundations they can be difficult to remove and given that there is a right to project foundations onto the neighbours land this can be problematic in the future, and so there are special arrangements whereby if you want a special foundation it can only be done with the consent of your neighbour, so if you want to underpin the wall to create a basement, for example, then you may have to do it in mass concrete which means a wider foundation and therefore less space in your newly dug basement than would be necessary if your neighbour will not allow you to construct special foundations. 


Host:     Bit of an odd question spinning off from this topic, but obviously this applies to party walls and that is clear how that can work but is there a way that this can be applied to party floors?


MK:       What special foundations and party floors or the Act and party floors?


Host:     Or whatever you think really?


MK:       Well special foundations, because of their definition, would normally only be a foundation under a wall because it refers to works that might go onto the neighbour’s land, in other words pass the centre point of the wall, where the wall is then on your neighbour’s land rather than on your own land, so it doesn’t really effect floors, reinforced concrete floors cos they would be entirely within your own property and not extending onto your neighbour’s land, but a wider question that you’re question suggests is does the Party Wall Act apply to floors separating flats for example in buildings, and the question is yes, it is not then called a party wall it’s called a party structure, the separating floor, and that is why the Party Wall Act is actually called the Party Wall Etc. Act because some pedant in the Government Legislation Department pointed out that there were things in the Act that weren’t about walls and how were we going to cover that, so they put in the silver service compromise of etc. 



Q5 @ 14m:30s – My neighbour has told me I have to let them build their extension up against my own extensions wall, is that true?



Host:     Excellent thank you very much.  So, my neighbour’s been telling me that I have to let them build their extension up against my own extension’s wall.  Is that true?


MK:       Possibly, it depends on specific facts so if your extension wall is entirely on your land, they have no right to use it but can build their own wall on their own land right up against it.  However, if your extension wall is built astride the boundary and is thus a party wall then the neighbour can use the wall itself as part of their extension. 



Q6 @ 15m:17s – What are enclosure costs (may be answered as part of the answer to the above question) and how do you calculate them?

Host:     Lovely you thank you very much for that, that is great.  Michael what are the enclosure costs?  I guess it can be answered as part of the question that you just answered but I’m interested in how you calculate them.


MK:       Okay, enclosure costs is the expression in common use but the relevant part of the Act, Section 11(11) talks about make use of costs and there is an important differentiation because if you are making a use of a wall originally built by your neighbour at their own cost, and this needs to be a party wall, then any use made of it means that you may have to pay them money to compensate for the fact that they built it and now you’re using it.  So an example where you might be making use when you’re not actually enclosing, would be if your neighbour’s had excavated their back garden to a lower level so that it was more external space beyond the basement floor of their building, they will then put a retaining wall in to hold up your land, if at some time in the future you also decide to reduce the level of your garden to make a bigger area outside the back of your basement flat or basement floor then you would be making use of their wall, the wall they built, the party wall but the wall that they built at their expense but you wouldn’t actually be enclosing it you would be doing quite the opposite, you would be exposing it, so that’s why the Act says make use of costs.  In terms of how you calculate them the Act gives some very clear advice about that at Section 11 (11) but basically you calculate the cost at today’s prices of the bit of wall or the works that are being made use of and then usually you will be required to pay one half of that cost so that you have now eventually shared the cost of constructing the wall. 


Host:     Do you think using the terms that I’ve asked in the question do you think it’s quite a complicated process or when its broken down into its composite parts its quite straightforward?


MK:       No it’s pretty straightforward and it arises quite often on fairly straightforward works, for example, if one owner has built a loft conversion, has raised the party walls to create that loft conversion then when the neighbour wants to do, decides they want to do that at some later stage then they will be enclosing the usual inaccurate expression, or making use of, to use the Act’s wording, onto the wall that the neighbour has previously built, and that’s fairly straightforward, you would look at the work that was involved in doing that, so that would have been putting up some scaffolding, taking off the parapet detail, the coping or whatever from the original party wall, raising it up by as many courses as you need to and it would be very obvious what the neighbour did because the new bricks will look different from the old bricks and installing a new coping on the top of it and that’s usually easy to value, not least because you yourself as a neighbour are probably, but not necessarily raising the other party wall so you will have some contemporary costing information and even if you don’t it’s fairly straightforward for a building surveyor or a quantity surveyor to calculate those sorts of costs, or for your builder to provide some costs.



Host:     That’s a great answer, thank you very much.  Well, you’ve been tuning into Cardoe Martin’s Building Surveying for Professionals Podcast that was Episode2, thank you very much Michael Kemp for staying with us through that, you are going to stay around for Episode 3 which will be following straight after. Thanks for listening.