BUILDING SURVEYING FOR PROFESSIONALS PODCAST
Party Wall Matters with Michael Kemp Episode 2
Host: Welcome to the Cardoe Martin Podcast, Building Surveying for Professionals. Now in Episode 3 we are going to chat again with Michael Kemp. Michael thank you very much for coming along, first things first though we are going to skip on the quick fire round and we are going to go straight to a bit of an introduction and we’re here really to discuss party wall matters and this content is aimed at people familiar with the subject but there’s going to be something for everyone, so even if you are just passing interests in the topics or you’ve got a particular issue that you’re interested in learning more about that is affecting you at the moment, this is the Podcast for you. Michael, welcome again to the Podcast, thanks for coming back for Episode 3.
MK: Thank you.
Host: I think our audience would be interested to find out more about who you are and what can you do for the listeners. Why are you the specialist, the guru and the go to guy?
MK: Well I hope that’s how people will think of me I don’t know. Yeah, so I’ve been dealing with party wall matters throughout the whole of my professional career which probably is about 40 years, although I don’t like to think about it, so I have had a lot of experience, in recent years I regularly acted as a Third Surveyor, that’s a kind of Arbitrator, when party wall surveyors can’t agree and I have also given Expert Witness evidence in cases at Court on the Party Wall Act. I am also the National Education Coordinator for a specialist Party Wall Surveyor’s Club, called the Pyramus and Thisbe Club, and through that I do a lot of talks and organising lectures for others, so I do have quite a wide knowledge of the subject.
Host: I’m interested in learning more about this Party Wall Act and can you kind of give us a lowdown on what it is and why it’s important.
MK: Yeah, The Party Wall Act, The Party Wall Etc. Act 1996 to give it its full name is an Act that governs what you can do to principally to walls that separate buildings but it also covers issues such as building close to the line of junction between your property and the neighbour where that boundary is not yet built on, it also applies to party floors, party structures that separate premises horizontally and it also applies to excavation close to your property and within certain set distances. So it basically it covers a situation within dense urban areas there are lots of situations where at the ordinary law, the common law as it’s called, the wall separating two properties is partly owned by one person, the half that’s on their land, partly owned by the other and that causes problems if you need to or want to underpin it or raise it higher or cut beams into it or things that people do from time to time as part of improvement works to their premises. So over many years, in fact centuries, party wall legislation has developed, historically in London, because London was a big dense urban area long before anywhere else in the country or arguably the world and so it needed its own special rules but in 1996 those rules were extended to the whole country, that’s England and Wales, it does not apply in Scotland or Northern Ireland and so it is now a National Act, it means whenever you want to do work on your property you have to follow the procedures in the Act. So if you want to carry out works on your property which affects the party wall, involves excavation or involves a separating structure between your flat and the flat above or below it then you have to follow the procedures in the Act which are simply you have to notify your neighbours formally in writing of what you intend to do and they have the opportunity to either consent to those works going ahead, in which case that is all that needs to happen, or they have the opportunity to appoint a surveyor who then considers the works being proposed and follows the procedures in the Act to ensure as best as is possible that the works being undertaken are works which the neighbour is entitled to do and that being done in a way that does cause any unnecessary inconvenience to the neighbour. Obviously there is more to it than that but that’s basically the nature and purpose of the Party Wall Etc. Act.
Host: What you mentioned back then about the rest of the United Kingdom or Great Britain doesn’t seem to get involved with this Party Wall Act, what happens there do they have to squabble and sort out their own problems or is there something covering the rest of the UK?
MK: Well, I’m not sufficiently knowledgeable having not practiced in those other areas to give you the clearest answer but Scottish law has always been separate, well not always, but for many centuries all Scottish law has been separate from English law and has developed in a slightly different direction. I do think that they any party wall processes as such up there so it may well be that there and in Northern Ireland that it reverts to the old common law situation where the wall is owned one half each by the properties, by the neighbours, and that you are entitled to do things on your half but not on the other.
So for example, before the Party Wall Act was implemented after 1996 within London there was equivalent legislation called the London Building Act but it only extended to historic core London, the old London County Council area of the Inner London Boroughs so outside of the Inner London Boroughs, broadly speaking outside of the North and South Circular but it’s not quite as simple as that, there was no Act and legislation so you will see situations there where buildings were developed prior to 1996 and when people raise roof extensions they only built on one half thickness of the wall because they weren’t entitled to go any further, and also where underpinning was done particularly let’s say in outer West London, Harrow, Pinner, those kind of areas where is lots of clay sub-soils that suffered badly in the 70’s from subsidence and people wanted to underpin party walls to strengthen foundations to make them more able to resist clay shrinkage subsidence, they were unable without their neighbour’s consent to underpin the wall because you can’t just underpin half the thickness it’s all or nothing, and you were not entitled to work on your neighbour’s land so I suspect that that’s the kind of situation you’re in in Northern Ireland and Scotland and it’s not as complex or difficult as it might appear because it’s a situation that the whole or England and Wales was in until 1996.
Host: Lovely thank you for that, that’s interesting. So we’ll move onto the questions and we’ll kick off with a problem I’ve got so can I stop my neighbour’s proposed foundations projection coming over into my land and what alternatives are there?
Q1 @ 6m:57s – Can I stop my neighbours proposed foundations projection coming over into my land? What alternatives are there?
MK: So neighbours may underpin the full width of existing foundations and where a new wall has been constructed up to the line of boundary the Section 1 of the Act allows the neighbour to place projecting footings and foundations below the level of the land of the neighbour where necessary for the construction of the wall, and those are the words the Act use. So, it may be possible to argue that foundations could be designed differently so that it is not necessary to protect over the neighbour’s land but it is broadly accepted that footings and simple foundations can be projected onto your land.
Host: Okay that’s useful thanks for answering. If works are being carried out to the foundations of the building containing flats do all the flats need to have Notice served by the party doing the works themselves?
Q2 @ 7m:54s – If works are being carried out to the foundations of the building containing flats do all the flats need to have Notice served by the party doing the works themselves?
MK: Now that’s a question, this is one of the great unresolved questions of party wall practice, the Act does not make it clear as to how far you need to go in serving Notices and those kind of situations and there is no case law that really helps at all on that particular subject. So there are some kind of general rules that surveyors will apply which are based on practical approach to the problem and they are on any known legal framework because there really isn’t one. So firstly we need to assume that the works are being carried out to the foundations are works that would come within the scope of the Act in other words notifiable works to a party wall so it would be strengthening or excavating deeper those foundations for example.
So that’s what’s being proposed and it then depends a little bit on the nature and size of the building, those foundations support a wall and it is who owns that wall and the foundations that it sits on that is the question you need to ask yourself. Now this is distinct in a leasehold situation, distinct from who is responsible for carrying out repairs, so often under a lease, lessees have to contribute to the costs of repairs of the whole building, it’s about what they actually own, what is within their demise. So, starting with the simplest situation if the wall and its foundations stand astride a boundary then there will be an owner who requires a Notice, it will be the owner of the neighbouring property, but the situation could be complicated if the landlord owns the land on both sides of the building, so then you need to look at who else might be affected and it is considered disproportion to serve Notices in all lessees in very large buildings so let’s look or think of a very large freestanding block of flats which may have 80 units or more in it where there might be 3 or 4 or more flats horizontally within that building, surveyors would take the view and I think the legal system would generally support them, that only those flats that have a reasonable prospect of being directly affected by the work in terms of inconvenience or potential damage would need a Notice.
So if you’ve got a flat where work is being done on foundations, you’ve got a flat that is directly above that foundation, the digging is going on just below the level of your ground floor then I don’t think there’s any doubt that people would say you should have a Notice, but if you are let’s say 8 storeys higher above that flat people may say no that’s too remote, although I think perhaps anything that is vertically above the flat probably there’s a better case for saying they should have a notice. So then let’s consider the flat that’s on the other side of the building, the block is 3 or 4 flats wide and the flat we are considering is on the far right hand side of the building if you like and the works to the foundations are being done locally to the far left hand side of the building 3 flats away. In those kind of circumstances very few people would say that that flat requires a Notice but there is no clarity here exactly what is in the demise of any particular flat will be relevant and it is absolutely a situation where careful advice is required from an experienced practitioner as how to move a situation forward.
Host: Again that’s a really useful extensive answer, thank you for spending the time on the preparation, I probably can see where you’re coming from with this because if the flat isn’t adjacent I can see why you might not want to serve but if it’s ambiguous at the moment then I think it’s important, as you say to consult someone with the necessary experience.
MK: What I would add there is that at the end of the day the person who should make the final decision as to whether they are going to serve a Notice should be the Building Owner, the person wishing to carry out the work. The practitioners duty is to carefully explain the situation to them, the difficulties and ambiguities and the risks of them taking one or other course of action. Now one way of looking at it would be to say what might the consequences be if you do not serve a Notice on every single one of the 80 let’s say flats in this giant block of flats when you are doing local work affecting one corner of the building. Now the Act requires its procedures to be followed and if they are not being followed you can apply to the Courts and you can get an injunction to stop the works, that’s obviously expensive but if the Court is satisfied that the Act has not been followed then an injunction would be sought.
Now if you are, if you have carefully considered the situation and decided not to serve a Notice on the flat it must be because you have good reason to think that it’s not reasonable in all of the circumstances and therefore is that person going to seek an injunction where they would have to go before a Court and argue through their advisers why they should have a Notice in a situation that is quite a grey area at law that would be very expensive to do and are they likely to do it. So it’s taking a risk, an assessment approach as to the consequences of your actions. One way around this problem is to say to the lessees we do not think the Act requires us to serve Notice on your flats if that is the conclusion you have come to in the specific circumstances that apply, but you will say we will at our own expense prepare a Schedule of Condition of your premises, because the key thing that people are going to worry about in these circumstances is simply damage to their property and if there’s a schedule that describes the property before the work starts and is an easy thing to do to check whether there is any damage.
When major building works take place all the neighbours immediately think, oh what is all this diversion, all this noise, all this coming and going, all this heavy machinery my building must be being damaged and they start to notice things that they haven’t noticed before, and experienced Party Wall Surveyors will tell you that in many, many cases the things that people say, this wasn’t here before, are things that turn out to have been there before and surveyors know this because they will have done a Schedule of Condition before the work starts and they will be able to point out to the neighbour that the crack that they say is new was actually noted by the surveyors sometime previously before any work started. So that may be the compromised situation where you’re really unsure what to do, serve Notice on the flats directly adjacent to the proposed works, Schedules of Condition should be prepared on flats that are nearby and might be affected and the remaining flats can be kept outside of the process.
Host: That’s very interesting particularly about the Condition Surveys as well, that’s useful. Everyone’s going to think I’ve got endless party wall issues this week, but I’ve got another problem so what I can do if I think my neighbour has built their works differently to the agreement in the Award. For instance, if I think they have built further onto my land then they should have done and obviously I’m starting to get a bit ants in the pants about this and kind of what do you think?
Q3 @ 15m:47s – What can I do if I think my neighbour has built their works differently to the agreement in the award, for instance, if I think they have built further onto my land?
MK: Well the most important thing here is to raise this issue immediately that you become aware of it, if you allow the neighbours to continue to build the law may consider that you have acquiesced in the work, they take a dim view of people waiting until its really complicated and difficulty for the neighbour to rectify a problem before telling them, where compared with a circumstance where if they had told them immediately it would have been relatively straightforward to deal with it. So the first thing is do something about it, so what might you do. Well initially raise this with your party wall surveyor if you have appointed one, or with your neighbour direct if you did not appoint a surveyor and perhaps agreed in advance to these works proceeding.
The Act at Section 7 and most Party Wall Awards state that no variation shall occur without agreement, the exact words are “no deviation shall be made from the planned sections and particulars except such as may be agreed between the owners or surveyors on their behalf” so in the example given there will be a clear trespass, and if raised early on it should be possible to require them to rebuild on the proper line or alternatively you may agree to some compensation to allow them to leave it where it is. In that kind of circumstance a trespass you should seek some proper advice because it may be necessary for the Deeds to be amended to show that the boundary lines effectively changed because of the works that you are now consenting to but were over generally a trespass, but there are plenty of other cases where the nature of the works does change a little during the course of the works but is not of any particular consequence other than it looks different to what the Award says.
So examples might be that the neighbour was proposing to put a beam into the wall to support something and it has been necessary to slightly change the location of that beam, that’s not a big deal particularly had they shown it in a different position at the start no one would have made any particular complaints about it but it is a deviation from the original proposals and therefore it needs to be recorded so that no one in the future can argue that the works have been done wrong, so there is a differentiation between things such as trespass where the issues important where there can be no right to trespass only by agreement, and situations where the works have deviated from the original contention in a way that doesn’t really cause any issues for the neighbours other than they may need some reassurance that they don’t actually cause any issues and there may need to be some record so people know that the work was authorised.
Host: That’s a great answer as well, thank you very much. I’ve got a Party Wall Award signed by my neighbour now but they haven’t started the works but they’ve now sold and I’ve gone and got myself a new neighbour so do they need, do I need to start again, or do they need to start again?
Q4 @ 18m:55s – I have a party wall award signed by my neighbour but haven’t started the works, now they have sold and I have a new neighbour – do I need to start again?
MK: Well it’s somewhat unhelpful that this you would think is a very obvious point, I mean it is a very obvious point and therefore you have thought the Act would say something, well it doesn’t, silent on this, and there is no relevant case law, the consensus view amongst practitioners is that the Adjoining Owner would be bound by the Award particularly if the new neighbour, as he should have been, had been made aware of the Award during the conveyancing process. Some people have a different view, but I think most people would say that the Award stands and the new neighbour is protected by it and goes with it.
Now the question asks about what happens when you are the Building Owner, the Developing Owner and the neighbour next door changes the course of the process obviously there’s the other situation where you are the neighbour and the Building Owner agrees an Award, we’ll say that an Award is agreed for the Building Owner’s works and then the Building Owner changes, now in that situation the general view is that it is necessary for the party wall process to start again. There are various reasons for it but probably the main one is that if you have a new owner you as a neighbour will have little knowledge of that owner, they’ve just bought the property, and may want additional safeguards for example when dealing with somebody you don’t know at all and a situation where you will have got on very well with your neighbour, didn’t want to do anything that upset them not least because you perhaps wanted to do similar work in the future yourself, so there is a view that a Building Owner’s Award that the process has to start again when the Building Owner changes but that if it’s the Adjoining Owner that changes, the Award will remain valid for its currency. Now most Awards state that they are only valid for one year anyway.
Host: That’s good so I can see the potential source of conflict there in the situation with changing neighbours and different people coming in, different mindsets and different approaches and I suppose people can be quite nervous about the Party Wall Act in some instances.
MK: Yes indeed, and I mean wholly understandably, you know this is, the English person’s home is their castle, everybody thinks that their absolutely entitled to the utmost protection for their property and broadly speaking the law takes that view as well, it is very careful about removing property rights from individuals both through case law or through legislation and you only have to look at some of the appalling stories you hear about boundary disputes where people spend tens of thousands arguing about a strip of land a couple of inches wide which has no real effect on the value or utility of a property in most cases, but they still will spend money because they are protecting their rights, so neighbours are very nervous and this is why there is a Party Wall Act because without it there would be many, many more problems where people do things that they are entitled to do at the common law as it’s called which they could do without any control, whereas now there is a controlling process that tries to keeps these things within a legislative framework, the neighbours have rights, duties and responsibilities and protection.
Host: Excellent thank you for that. So, if I needed to hire a Party Wall Surveyor how would I know if a Party Wall Surveyor is any good? What are the kind of the signals that I should be looking for as a layman?
Q5 @ 22m:37 – If I needed to hire a party wall surveyor, how would I know if a party wall surveyor is any good?
MK: Well I suppose it will just be too cheeky to say that Cardoe Martin is very experienced in party wall surveying work and this is where you should come but let’s look a bit wider with that question. How would I know if a Party Wall Surveyor is any good? Well this is a really interesting question because the Act does not provide any definition of surveyor, it just simply says if there’s a dispute or a need surveyors should be appointed by the parties, and anybody could be a surveyor, anyone out there listening to this, anybody who works in a marketing agency or in a newspaper, or as a street cleaner or the Chief Executive of a multi-national company could all be appointed as a party wall surveyor as long as they have no ownership interest in the problem, and not too closely connected with the dispute. So it’s difficult, so it does mean that there are people out there who have done short courses on the legislation and understand the Act very well but perhaps don’t understand building construction, building techniques and such like very well, who practice as party wall surveyors and there are people like that all over the place.
There are people within the professions who are very good surveyors but are not particularly experienced in the party wall process and one thing I have noticed during my career is how much more complicated the process has got for surveyors, in a sense that there is much more legal interest in the process now and much more that one needs to understand about the ambiguities in the Act and the areas that aren’t clearly covered, some of the things that we have been talking about in the Podcasts that we are doing on the Party Wall Act, so, how to resolve this as an owner looking for a surveyor. I think you would really do the same thing as you would do in trying to find any sole?? to assist you. A builder for example, you would look for people who did have some qualification of some sort, professional qualification, you would look to see that they seemed to be familiar with the party wall process through information on their website or such like, you could enquire of neighbours and colleagues, you could look up and down your street to see similar work that has been done by others and see who they used and how they got on. There are some organisations that particularly set up for surveyors practicing as party wall surveyors, one that I am involved in is something called The Pyramus and Thisbe Club.
Host: That sounds a midsummer night or something Shakespearean, Dickensian.
MK: Oh well it’s a midsummers night dream not midsummer murders, yes if you want a little bit of background about that, the Club was set up in 1974 after a widely reported Court case which was very critical of the way that surveyors dealt with the process, broadly they would have been too matey and slack about it all and as a consequence the organisation was set up for surveyors to exchange views and information and experiences to build on their abilities and understanding of the process. It’s called The Pyramus and Thisbe Club because this little sub-play of Pyramus and Thisbe that takes place within the play Midsummers Night’s Dream was about two lovers who were conducting an illicit relationship or a relationship disapproved by their parents and they conducted it by speaking through a chink in the wall between the two properties and this was considered a good kind of analogy for the party wall process.
Interestingly the play of Pyramus and Thisbe is something that Shakespeare nicked from the Ancient Greeks and also not only did he use this play within Midsummers Night Dream but he also used a basic story as the basis for Romeo and Juliet. I once had a very excited trainee surveyor who worked for me, ring me up on holiday in Cyprus, and I thought why is he ringing me up most people want to forget about their boss when their on holiday, he was being shown around an old ancient villa in Paphos and on the floor of this villa was a mosaic of the story of Pyramus and Thisbe so there you go. So anyway, Pyramus and Thisbe is an organisation who does its best to train surveyors, I have an interest in that because my role in that organisation is National Education Coordinator and I do spend a lot of time encouraging branches to put on high quality talks providing content for those talks and delivering talks myself from time to time, and on the website of The Pyramus and Thisbe Club you will “Find a Surveyor” section but again surveyors.
Host: Is that a .co.uk or a .com?
MK: Do you know I would just search Pyramus and Thisbe Club it’s not going to bring you up too many alternative possibilities, I’m pretty sure it’s .co but let’s just go with Pyramus and Thisbe, enough of the hard sell but one needs to consider that organisation only requires people who want to join it to have an interest in the subject, it still doesn’t mean that these surveyors have enormous experience although many of them are the leading surveyors in the country but it is a good place to start and find people who are interested enough in learning about the process to sign up to an organisation that assists them.
Host: Excellent thank you very much for that Michael, I think it’s useful to understand the distinctions between the different types of people who can undertake party wall matters, it sounds quite expensive but I am assuming, well certainly something I’ve taken from this, if Podcast so far is considering the depth of technical expertise required to really get under the skin and understand the nuances of party walls it doesn’t sound like something I’d be interested in undertaking anytime soon myself. It’s probably advised. You’ve been tuned into Cardoe Martin’s Building Surveying for Professionals Podcast, thank you very much again to Michael Kemp for joining us today for Episode 2 and 3 and thank you very much for listening.