Party Fence Wall Disputes in London Victorian Terraces: Rights, Remedies, and Costs

THE PARTY WALL ETC ACT 1996 DISTINGUISHES BETWEEN DIFFERENT TYPES OF WALLS AND BOUNDARIES:

PARTY FENCE WALL (SECTION 1 OF THE ACT): A PARTY FENCE WALL IS A WALL THAT STRADDLES THE LINE OF JUNCTION BETWEEN TWO PROPERTIES — STANDING PARTLY ON THE LAND OF EACH OWNER. THE CLASSIC EXAMPLE IN A LONDON VICTORIAN TERRACE IS A REAR GARDEN WALL THAT SITS ON THE BOUNDARY LINE, WITH EACH OWNER OWNING HALF. A PARTY FENCE WALL IS NOT PART OF A BUILDING — IT IS A FREESTANDING WALL. RIGHTS UNDER THE ACT: EITHER OWNER CAN CARRY OUT WORKS TO A PARTY FENCE WALL — BUT MUST SERVE NOTICE UNDER SECTION 1 OR 2 AND COMPENSATE THE NEIGHBOUR FOR DAMAGE. NEITHER OWNER CAN REQUIRE THE OTHER TO MAINTAIN OR REPAIR THE WALL UNLESS A SPECIFIC COVENANT EXISTS IN THE DEEDS.

PARTY WALL (SECTION 2 OF THE ACT): A PARTY WALL IS A WALL THAT FORMS PART OF A BUILDING AND STANDS ON THE BOUNDARY OR PARTLY ON THE LAND OF EACH OWNER. THE CLASSIC EXAMPLES IN A VICTORIAN TERRACE ARE THE SHARED DIVIDING WALLS BETWEEN TERRACED HOUSES (WHERE THE WALL IS JOINTLY OWNED) OR THE SHARED WALL BETWEEN A HOUSE AND NEIGHBOUR\'S PROPERTY WHERE IT SERVES BOTH BUILDINGS. RIGHTS UNDER THE ACT: SECTION 2 ALLOWS EXTENSIVE WORKS ON PARTY WALLS — INCLUDING UNDERPINNING, RAISING, THICKENING, AND INSERTING BEAMS — BUT NOTICE MUST BE SERVED AND THE NEIGHBOUR\'S AGREEMENT (OR AWARD) OBTAINED FIRST.

BOUNDARY WALL ENTIRELY ON ONE OWNER\'S LAND: A WALL THAT SITS ENTIRELY WITHIN ONE OWNER\'S LAND (EVEN IF IT FORMS THE BOUNDARY) IS NOT A PARTY WALL OR PARTY FENCE WALL — IT IS THAT OWNER\'S WALL ALONE. THE NEIGHBOUR HAS NO RIGHT TO ATTACH TO IT OR USE IT WITHOUT PERMISSION.

HOW TO ESTABLISH BOUNDARY POSITION: THE LAND REGISTRY TITLE PLAN SHOWS THE GENERAL POSITION OF BOUNDARIES — BUT THE PLAN IS NOT PRECISE ENOUGH (SCALE 1:1250 OR 1:2500) TO DETERMINE EXACT BOUNDARY POSITIONS. THE EXACT BOUNDARY POSITION MUST BE ESTABLISHED FROM: TITLE DEEDS AND CONVEYANCING DOCUMENTS (T-MARKS, METES AND BOUNDS DESCRIPTIONS); PHYSICAL EVIDENCE ON THE GROUND (WALLS, FENCES, HEDGES); HISTORICAL EVIDENCE (OS MAPS, AERIAL PHOTOS); AND EXPERT SURVEYOR EVIDENCE IF DISPUTED.

THE FOLLOWING ARE THE MOST COMMON PARTY FENCE WALL DISPUTE SCENARIOS IN LONDON VICTORIAN TERRACES:

SCENARIO 1: NEIGHBOUR WANTS TO DEMOLISH A SHARED GARDEN WALL. A NEIGHBOUR WANTS TO REMOVE A GARDEN WALL THAT THEY CLAIM IS THEIRS ALONE. THE HOMEOWNER BELIEVES IT IS A PARTY FENCE WALL (SHARED). RESOLUTION: - FIRST: CHECK THE DEEDS OF BOTH PROPERTIES FOR T-MARKS, OWNERSHIP LANGUAGE, AND MAINTENANCE OBLIGATIONS. - IF THE WALL IS LIKELY A PARTY FENCE WALL: WRITE TO THE NEIGHBOUR ASSERTING YOUR RIGHTS UNDER THE PARTY WALL ACT. IF THEY PROCEED WITHOUT SERVING NOTICE, THEY ARE IN BREACH OF THE ACT — SEEK AN INJUNCTION FROM THE COUNTY COURT (SMALL CLAIMS TRACK IF UNDER £10,000). - IF BOUNDARY OWNERSHIP IS GENUINELY UNCLEAR: INSTRUCT A BOUNDARY SURVEYOR (RICS MEMBERS WITH BOUNDARY DISPUTE EXPERIENCE — ASSOCIATE MEMBER OF THE EXPERT WITNESS INSTITUTE) TO PREPARE AN EXPERT OPINION REPORT (£1,500-4,000).

SCENARIO 2: NEIGHBOUR IS BUILDING AGAINST OR AGAINST A SHARED WALL WITHOUT NOTICE. A NEIGHBOUR STARTS BUILDING WORKS AGAINST A SHARED GARDEN WALL (ATTACHING A NEW STRUCTURE, EXCAVATING NEAR THE WALL) WITHOUT SERVING PARTY WALL NOTICE. RESOLUTION: - THE PARTY WALL ETC ACT IS A CIVIL MATTER — LOCAL PLANNING OR BUILDING CONTROL CANNOT ENFORCE IT (THOUGH THEY CAN REQUIRE A PARTY WALL AWARD IF ONE IS NEEDED FOR BUILDING REGULATIONS COMPLIANCE). - WRITE TO THE NEIGHBOUR IMMEDIATELY REQUESTING THAT THEY SERVE NOTICE AND OBTAIN AN AWARD BEFORE CONTINUING. RETAIN A SOLICITOR\'S LETTER IF THEY REFUSE (£300-800). - IF DAMAGE TO YOUR PROPERTY OCCURS: DOCUMENT DAMAGE WITH PHOTOGRAPHS AND ENGAGE A PARTY WALL SURVEYOR TO SCHEDULE THE CONDITION OF YOUR PROPERTY AND QUANTIFY THE DAMAGE. - IF WORKS CONTINUE WITHOUT NOTICE: APPLY TO THE COUNTY COURT FOR AN INJUNCTION TO STOP THE WORKS.

SCENARIO 3: NEIGHBOUR CLAIMS A FENCE OR WALL IS IN THE WRONG POSITION. A NEIGHBOUR CLAIMS YOUR FENCE OR WALL IS ENCROACHING ON THEIR LAND — OR VICE VERSA. RESOLUTION: - DO NOT MOVE OR DEMOLISH THE FENCE UNTIL THE BOUNDARY POSITION IS ESTABLISHED — DOING SO COULD BE TRESPASS OR ADVERSE POSSESSION CONCESSION. - GATHER ALL DEEDS, TITLE PLANS, AND PHYSICAL EVIDENCE. - AGREE JOINTLY TO INSTRUCT A BOUNDARY SURVEYOR TO PRODUCE AN EXPERT OPINION. - IF AGREEMENT CANNOT BE REACHED: FORMAL BOUNDARY DETERMINATION APPLICATION TO LAND REGISTRY (HM LAND REGISTRY — DETERMINATION OF BOUNDARIES APPLICATION — FORM DB) OR COUNTY COURT PROCEEDINGS.

WHERE A PARTY WALL DISPUTE CANNOT BE RESOLVED BY AGREEMENT, THE ACT PROVIDES A FORMAL PROCESS:

SERVING NOTICE: THE BUILDING OWNER (PERSON CARRYING OUT THE WORK) MUST SERVE WRITTEN NOTICE ON THE ADJOINING OWNER. THE NOTICE MUST COMPLY WITH THE ACT — STATING THE NATURE OF THE PROPOSED WORK AND THE DATE OF COMMENCEMENT. NOTICES MUST BE SERVED: - SECTION 1 (NEW WALL ON BOUNDARY): 1 MONTH BEFORE WORK STARTS - SECTION 2 (WORKS TO EXISTING PARTY WALL): 2 MONTHS BEFORE WORK STARTS - SECTION 6 (EXCAVATION WITHIN 3M OF NEIGHBOUR\'S BUILDING): 1 MONTH BEFORE WORK STARTS

RESPONSE OPTIONS: THE ADJOINING OWNER HAS 14 DAYS TO RESPOND: - CONSENT IN WRITING: WORKS CAN PROCEED (NO SURVEYOR REQUIRED) - DO NOT RESPOND: DISPUTE IS DEEMED TO HAVE ARISEN AFTER 14 DAYS - DISSENT: DISPUTE HAS ARISEN AND A SURVEYOR MUST BE APPOINTED

SURVEYOR APPOINTMENT: WHEN A DISPUTE ARISES (OR IS DEEMED TO HAVE ARISEN), A SURVEYOR MUST BE APPOINTED: - AGREED SURVEYOR (SINGLE SURVEYOR ACTING FOR BOTH PARTIES): MORE COST-EFFECTIVE; ONLY POSSIBLE IF BOTH PARTIES AGREE. COST: £800-1,600 FOR A STANDARD AWARD. - EACH PARTY APPOINTS THEIR OWN SURVEYOR (TWO-SURVEYOR PROCEDURE): MORE ADVERSARIAL; USED WHEN AGREED SURVEYOR CANNOT BE AGREED. COST: £1,200-2,500+ FOR STANDARD AWARD. THE BUILDING OWNER TYPICALLY PAYS BOTH SURVEYOR COSTS. - THIRD SURVEYOR: APPOINTED BY THE TWO SURVEYORS AS AN UMPIRE IN CASE OF DISAGREEMENT. RARELY USED IN STRAIGHTFORWARD RESIDENTIAL CASES.

THE PARTY WALL AWARD: THE AWARD IS A LEGAL DOCUMENT THAT SETS OUT: THE WORKS PERMITTED; THE METHODOLOGY AND PROTECTIVE MEASURES; A SCHEDULE OF CONDITION OF THE ADJOINING OWNER\'S PROPERTY BEFORE WORKS START; AND WHO PAYS THE COSTS. THE AWARD IS BINDING ON BOTH PARTIES AND ENFORCEABLE IN COURT.

SCHEDULE OF CONDITION: THE SCHEDULE OF CONDITION (PHOTOGRAPHIC AND WRITTEN RECORD OF THE EXISTING STATE OF THE ADJOINING PROPERTY BEFORE WORKS START) IS THE KEY DOCUMENT FOR FUTURE DAMAGE CLAIMS. IT MUST BE AGREED AND SIGNED BY BOTH SURVEYORS BEFORE WORKS START.