Can Our Neighbours Force us in to The Expense of a Party Wall Agreement?

Question

We have planning permission for a two story extension along the side of our house – the permission is to build right to the boundry. Our neighbours strongly objected to the plans at the planning meeting (although they had previously told us they had no objections) and are very angry that they have been passed. This extension is of a similar design to several others that have been approved on our small estate.

We have tried to consult with them and to come to an agreement  about the building process which will make things as easy as possible for both parties. Initially they agreed to enter into an access agreement with us which would have given us  limited access to their drive in order to put up scaffolding. This agreement would include a full schedule of work and agreements about work hours etc. and would protect them (and us) against  any damage to their property during the building.

We contacted a surveyor and it was agreed that he would prepare this agreement on  behalf of both parties as an independent surveyor..

We agreed to their request to build 6 inches inside our boundry rather than on the boundry line and also to pay them £500 for their inconvenience as they would not be able to use their drive for the 6 weeks it was agreed to let us have access. We did not agree to paying them a financial bond which they wanted to hold against possible damage,  ‘in case we ran out of money’.

They then asked that we pay their solicitor to look over the agreement and sign on their behalf and we agreed to do this also.

They have now told the surveyor that they do not want to sign this agreement but want  a Party Wall agreement instead and that they have appointed their own surveyor for this purpose. As we have not asked the first surveyor to act for us in a Party wall agreement he has not yet done so.

We do not want the additional expence of paying for a Party Wall agreement if we are not obliged to do this but are not sure if we legally  need to do this or not?

We will be building within 3 metres of their outside wall but are not certain of the depth of their house foundations, which I understand is a deciding factor of the Party Wall notice?   – Their house is the same design as ours and was built in the early 1960s. We have been asked to build our extension foundations to a minimum depth of 1000mm. with the  final depth to  be approved  by building inspector.  (A similar extension built a few doors away hit suitable ground at 900mm. so we anticipate the 1000mm will be enough)

There is currently a fence separating the two drives along part of the boundry which belongs to us (checked with Land Registry), They have a car port which protudes several inches over this fence – which is one of the reasons we have agreed to bring the wall in 6 inches. We also offered to replace their entire car port as part of the access agreement.

We now intend to build the extension from the inside (as agreed withour builder) and not to ask for access to their property at all.

Can you please offer us some advice?  From what I have told you – can they force us into the expense of a Party Wall agreement and therefore their surveyor’s and solicitor’s  fees in addition to the fees we have already incurred?

I am afraid they see this as a way of stopping us from being able to afford the building at all as it seems they can decide who works for them and therefore we will have no control over the fees we will be asked to pay.

Sorry if this is a long question but we do not want to break the law and yet cannot afford to pay for expensive work over which we have no control and currently feel we are at the mercy of our neighbours who are doing everything they can to thwart our plans and who will therefore rack up the expenses as high as possible if they are able.

Answer

The key question here is whether your works are notifiable. If the wall is built to the line of junction then it will be (section 1 of the Act) but if it is kept back by 6 inches that part of the Act will not be invoked. You seem to have a good understanding of the rules covering excavation works (section 6) but without knowing the depth of your neighbour’s foundations you would have to proceed on an assumption (foundation put in in the 1960s are unlikely to differ much in depth from modern foundations).

If you are required to serve notice then your neighbour will have the right to dissent and appoint a surveyor upon receipt of that notice – once they do that you will also have to appoint a surveyor (unless the two of you can agree to use the same surveyor which seems unlikely in the circumstances) and an award will be agreed. Your neighbour’s surveyor’s fee will have to be agreed by your surveyor or failing that by the nominated Third Surveyor. It is unlikely that solicitors would be required to prepare an award for a domestic extension so you would not have to pay for any advice that your neighbour obtains in that respect. The benefit to you of having an award is that you will have a right of access if it is required to undertake the notifiable works.

If you decide that your works fall outside the scope of the Act then you do not have to serve notice and you can just get on with it although you will not have any right of access.

Follow up

We have checked with a builder in the same road who has put up a similar extension and he says that the houses have a foundation depth of 1metre – which is the same depth  that we are required to dig the new foundations.

It therefore seems that it is fair to assume we do not need a Party Wall agreement as the new foundations will not go any deeper than that of our neighbours house. We also intend to put in the foundations  in stages – to minimise any risk.

My question is: is this OUR decision – or can the neighbours force us into a Party wall agreement even if we do not believe that the work  is notifiable?

They have already appointed a surveyor who is telephoning the surveyor that we paid to produce the access licence and schedule of works and asking why we have not served  notice of a party wall agreement.  Our surveyor  is telling him, quite correctly,   that he has not had any such request from us.

We now wish to go ahead with the bulding by building from within and  without access to  their land and without any further dealings with them – unless of course we do cause any damage which we understand we would, of course,  be liable to pay for. We intend to take photographs of both properties before we start to minimise the risk of unfair claims.

I guess my main concern is that they could FORCE us to enter into an agreement which we do not need, given that we have already paid for a detailed schedule of work etc. and that we would then be liable for paying their surveyor as well as we would have no control on the bill they might run up.

Sorry if I have repeated myself but I need to know that I am not breaking the law if I go ahead withut any further communication with them.

Answer

The Adjoining Owners cannot force you in to having a party wall agreement if your works do not come within the scope of the Act. The Act is invoked by the serving of notice so without a notice there will not be a dispute for the surveyors to resolve.

If they can prove that you are excavating below the depth of their foundations then they could apply to court for an injunction to stop the work until notice was served and an award agreed. They would be required to give a cross undertaking in damages.

The key question is whether your work will involve excavating deeper than the base of their foundations but I can’t answer that for you.