Are you or your neighbour planning to renovate? This should be your first step

In 1913, two Chelsea homeowners battled it out all the way up to the House of Lords – now known as the Supreme Court – over a “large Virginia creeper” which had grown up the party wall – the wall that’s shared between two properties – from one house and allegedly spread damp into the neighbour’s servant hall.

Eliza Theodora Minturn, the owner of No 14 Chelsea Embankment, ended up paying No 15’s legal fees and footing the bill for two layers of asphalt three-quarters of an inch thick to damp-proof the party wall.

Hundreds of guineas were spent in the name of work that cost just shillings. Some 110 years later, and this is still the only party wall dispute case to have reached the Supreme Court.

These days, surveyors say cases typically only reach the Court of Appeal every few years.

Geoffrey Adams, senior director at surveying firm Anstey Horne, said one of the biggest bills for damages he has ever seen was for £20,000.

In this case, a builder had drilled straight through a wall in Fulham – not once, but at every tread of a three-storey staircase he was replacing. This created an ascending trail of boltholes in the neighbour’s wall, perforating reams of wallpaper which – to the homeowner’s anger – had been discontinued and so could not be replaced.

This was easily avoidable, Mr Adams said. Drill depth stops, which often come with drills when you buy them, are meant to prevent this very incident.

So, if there’s one piece of advice Mr Adams can give homeowners with lofty renovation dreams, it’s to make sure their builders and architects are competent – and to be sure they’ve read up on “The Party Wall etc Act 1996”.

What is the Party Wall Act?

The concept of a “party wall” evolved after the Great Fire of London in 1666. It left courts with piles of disputes over burnt buildings and paved the way for new regulation on how party walls should be built – preferably with stone, not flammable wood.

Since then, iterations of the law have evolved into what is now known as the Party Wall etc Act 1996. The law is used to protect homeowners from works in their vicinity which might damage their property. 

If a building owner wants to extend their loft, for example, they may need to install scaffolding on their neighbour’s lawn. This could turf up terrain and leave gaping holes in the ground. The act gives neighbours a way to seek recourse if damage is caused during any works.

It covers a broad scope, from those affected by 36-month projects to build inner-London’s multi-million “iceberg houses”, to those whose planter walls have been damaged after a boundary fence was replaced by a brick wall.

Gary Rycroft, a senior partner at Joseph A Jones & Co Solicitors, said despite being called the “Party Wall Act” – more often than not disputes are about the foundations and not walls. 

“The classic example is an extension in a row of terrace houses where you’re digging down into the foundations. Tampering with the foundations can be really destructive,” he said.

Before 1996, neighbours had to prove the damage themselves. It was sometimes really hard to prove your neighbour had a duty to you, Mr Rycroft explained.

“Now, this act is designed to head off litigation and get parties together at an early date. It puts an onus on the person carrying out the work to agree on a plan of work, timeframes and notify their neighbours.”

The best way to serve notice

If you’re a homeowner keen to make some major improvements to your property, it’s your job to let your neighbour know your intentions, and what steps you’ll be taking to avoid damaging their property.

Most party wall “disputes” begin with serving notice. As the one doing the work, you need to serve notice at least two months before you get started.

Mr Adams said: “Oftentimes, the first a neighbour hears about a development is from a notice from a surveyor. 

“It’s a real shock. I’d advise talking to your neighbours beforehand. If you want an easy process, engage your neighbours in advance.”

In the notice, you’re meant to include a plan of what you intend to do. The neighbour then has 14 days to reply.

A common misconception is that a surveyor needs to be involved at this stage. They can be, but they aren’t needed by law at this point. It is only if your neighbour “dissents” in response to the notice you serve them that you’d need to get one involved.

Your rights as a neighbour once notice is served

If you are the one who has been served notice, you effectively have three options:

1. You can consent: If you think it’s unlikely the work will cause any damage to your property and you have a good relationship with your neighbour, then you can consent to the works on the condition that the building owner carrying out the work takes dated pictures of the party wall before they begin. This gives you assurance that if anything did go wrong, you can prove it was as a result of the work, and not already broken or damaged. It also saves you from spending money on a surveyor.
2. You can dissent: To dissent, you’ll need to appoint at least one surveyor. You and your neighbour can either appoint a surveyor each – meaning double the fees – or appoint a “mutual” surveyor who can act on both of your behalfs. A mutual surveyor can’t be one that either of you have used before.
3. You can ignore it: However, this will be treated as “dissent”. You will be written to again for a surveyor to be appointed. If you don’t reply after a further 10 days, the building owner can appoint a surveyor. They will then need permission to access your property. If you decline, the law states that a police officer can force entry for the surveyor to complete their report.

Andrew Thompson, a fellow on the Royal Institution of Chartered Surveyors boundary and party wall practice panel, said neighbours assent in most cases.

He said: “While disputes can happen in party wall matters, they are the exception not the norm. If the risk of damage is minimal, then the two owners can sensibly consent. 

“I manage a 240,000-property portfolio and regularly give consent. Just because you have the right to object, it doesn’t mean you have to.

“The important thing to remember is that when notice is served, this triggers the legislation and both parties’ rights are protected. People wrongly think they can serve notice after they’ve done the work.”

The last party wall dispute to reach the Court of Appeal was the Shah v Power-Kyson case where the judge used the phrase: “No Notice, no Act.”

What happens if an issue occurs?

This is all down to the surveyor, who will inspect the property at the end of the work to identify any potential damage. 

Anyone can assign a value to any damage caused, but if this amount is disputed by either party, the surveyor gets the final say. 

An “award” document is then issued by a surveyor. Both owners have 14 days to challenge this, and if either party thinks the surveyor got it wrong then they can go to county court. If you both accept the decision, then the award has to be paid.

Importance of a ‘schedule of condition’

A “schedule of condition” document needs to be recorded by a surveyor before any work takes place if the neighbour has objected to them.

David Toogood, of Harding Chartered Surveyors, said: “This is absolutely essential and has to be agreed by the surveyor”.

He added: “If that isn’t there, solicitors will worry there is a dispute and this can delay a future sale of the house. I’ve seen this before.”

What happens if the neighbours don’t pay for the damage?

If the building owner who did the work refuses to pay for the damage, a judge can issue an injunction.

But, to get a county court judge involved typically requires a fee of around £5,000 for a file to be opened.

Mr Toogood said: “Despite great intentions, there are no teeth in the act. This is where it falls over. Where it is only mild building works with fairly small contract sums, £5,000 is a far way out from the £1,000 ballpark of damages being disputed. 

“And it’s not guaranteed that you’ll get this hefty legal fee back. Many people give up at this stage.”

What if your neighbour doesn’t serve notice?

Some building owners will carry out work without serving a party wall notice. But fear not, the act will still protect you as the neighbour.

Mr Rycroft said: “You’re in a very strong position to go to town on your neighbour if you haven’t been served notice.

“The first step is to take legal advice from a solicitor. Because it’s an open and shut case, you’re guaranteed to win all your money back – including any legal fees, which will be paid by the building owner.

“Often you run the risk of losing with enforcement action, but that isn’t the case here. Plus, you know the building owner has assets to pay you, because they can afford to renovate their house!”

Beware unscrupulous surveyors and builders

Party wall disputes are a niche area of the law. With this can come unscrupulous characters, according to Mr Toogood.

He said: “Surveyors will weigh in with a metre when there is no dispute. They should only get involved if the building owner can’t agree with their neighbour.

“The Party Wall Act is thin, and some surveyors do just get involved to make money.”

Homeowners should also be wary of the builders they employ, as often the cost of their mistakes will fall on their pocket. 

Mr Toogood recalls the story of two detached properties which sat side by side on a suburban street in Surrey. One of the homeowners decided he wanted to do a loft conversion. He got on well with his neighbour, watering his plants when he was on holiday. What could possibly go wrong?

One day, Mr Toogood got a call from the neighbour. He said the builder was behaving badly and making a big mess.

When the surveyor arrived, he discovered that the loft conversion, which had been built, was not the one the owner had been granted planning permission to build.

After calling the local planners, the owner was served with a demolition notice. The builder, having been paid handsomely, ran off. Meanwhile, the owner was left with a massive hole in his roof, and a very angry neighbour.

One morning on the way to work, his anger boiled over into a punch-up between the two men on their front lawns. Not long after this, both sold up and moved away.