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Basement Wars and the Party Wall, etc. Act - Image

Basement Wars and the Party Wall, etc. Act

Planning on creating a basement in your property? Don’t do anything until you’ve read this first. Stuart Birrell, Murray Birrell Director, Party Wall expert and former Chairman of the Pyramus & Thisbe Club, a Learned Society to promote Education and Excellence in Party Wall practice, gives his views on basements and how to avoid expensive legal costs.

 

Residents of London have been maximising the space and value of their properties by building downwards for many years. For wealthy residents, basements are being created for private cinemas, swimming pools, wine cellars and even squash courts. And these mega basements are being constructed at an astonishing rate. Over the past ten years, an estimated 2000 new basements have been dug in central London.

Once complete, the basements cause very little friction at all, as they are generally invisible. The problems occur whilst the works are being carried out. This kind of work can create a volatile mix of very intrusive, unpleasant works for neighbours. Many of these can be very wealthy people, for whom the cost of litigation is not at all frightening or prohibitive.

Therefore it is important to have the correct procedures in place, especially with the possibility of expensive legal costs. Almost without exception, all of these projects require Notice under the Party Wall etc. Act 1996.

Party Wall etc. Act

The Party Wall etc. Act is the latest incarnation of legislation that goes back hundreds of years, back to the 13th century in this country, but there is evidence of similar legislation in ancient Rome.

Indeed, Ovid, the author of the original Pyramus & Thisbe in 60BC wrote ‘The dividing wall has long been a bone of contention’. So, this is nothing new

One of the main benefits of this legislation and its predecessors has been to create a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighboring buildings, to enable lawful works to be carried out, and disputes resolved, without having to ‘lawyer up.’

Until fairly recently, the Act and its predecessors were extremely successful in keeping the legal profession at bay. Indeed, in a frequently quoted statement by His Honour, Judge Platt in 2007 in the summing up of Bansal vs Myers said:

"It is a tribute to the surveyors profession as a whole and to the members of the Pyramus and Thisbe Club in particular, that issues over party walls have generally been resolved by a pragmatic and co-operative approach to the provisions of the Act and consequently appeals to the County Court have been extremely rare.’"

The legislation was successful to the point that very few lawyers had any knowledge of or interest in party wall matters. Surveyors used their knowledge of construction and the legislation to reach agreement on the vast majority of disputes with common sense decisions. The Act has provided a framework to work within.

So, what’s changed? Basements. Basement Wars is a term that predates the BBC programme on the subject.

Getting it right

When you think about it, the whole concept of removing the foundations of buildings that may be over 200 years old, propping them up, extending the walls downwards onto new foundations and excavating a new floor or two, is quite astounding. Surely, buildings of this age would never take the strains imposed. To my surprise, for many years, few problems manifested.

There has been a change in recent years, with the sheer number of basement projects and the proliferation of new, and relatively inexperienced basement ‘specialists’, which has resulted in movement and cracking becoming far more prevalent than it was a while ago.

There are still some good engineering basement specialists around who build good basements, but at a price. Corner cutting is almost always cheaper.

What has happened as a result is that the legal profession has been drawn into these matters and shone a light on the Act. Some of the common-sense solutions adopted by surveyors have been successfully challenged in law, and if nothing else, it has meant that surveyors have had to go back to first principles to justify decisions.

The problem is that there is very little precedent case law. There are few County Court decisions, let alone cases that reach the Higher Courts. Also, Party Wall specialists have been unable to put forward a reasonably united front on some of the contentious issues. This has created uncertainty and the courts have been asked to determine.

 

 

Where to go now?

Litigation is very expensive and the lawyers have the same problem as surveyors, in that there is a lack of precedent. They do not know exactly how things will pan out and a great deal of money can be spent without making any progress. Also, litigation and certainly the Courts, should be seen as a last resort.

If you feel that you need legal advice, consult legal experts at an early stage, together with employing a suitably experienced party wall specialist. At present, anyone can call themselves a party wall surveyor, so before choosing one, check their credentials and find one who is experienced in these matters.

The Pyramus & Thisbe Club is a good place to start.

Following this, take advice as to where the pinch points are likely to be and plan for them. This should make the likelihood of litigation recede and hopefully sensible agreements can be reached between neighbours. Also, bear in mind that the cost of party wall negotiations and award are likely to be a very small amount as compared with the cost of the works. It is important to get it right.

Neighbourly matters

Please do not forget your neighbours in all of this, as you are going to have to live alongside them.

If you are planning a basement, it is unlikely that your neighbours are going to be delighted that you are going to put them through months, even years, of noise, dust and smells, in order to enhance the value of your own property, but you can minimise this by communicating and working with them to reach amicable agreements.

If you are an adjoining owner faced with a neighbour who wants to carry out this work, depending on your resources, the process is the same. Your neighbour will issue notice under the Party Wall Act 1996 and at that stage you have two choices in practical terms. You can either consent to the works, in which case they will proceed, or you can dissent, at which stage both parties need to employ a surveyor who will negotiate and agree an award. (I don’t think that the role of Agreed Surveyor is appropriate for matters as potentially contentious as ‘Basements’)

The Award will define the works permitted, set out rights and responsibilities, and although they do not have to, should include method statements, designs, investigations and a Schedule of Condition of the adjoining land and property.

There are a few pinch points in the Act. The first one is permission to place ‘special foundations’, in other words reinforced concrete foundations on the neighbours land. There has been much debate as to what constitutes a foundation and, whilst I think most surveyors in practical terms can agree what it is, the legal definition does need to be tightened up.

Chaturachinda v Fairholme has at least clarified some aspects, although it is advisory, not binding. More certainty would be welcome.

You can request security for expenses and, if you cannot agree this with your neighbour, the two surveyors will determine this. Compensation is often requested. The Act allows for this, but only in regard to work pursuant to the Act.

Reasonable costs in relation to making the Awards will be the responsibility of the owner who is gaining the benefit of the work, in this case almost always the Building Owner who wishes to carry out the works. Do not forget the word ‘reasonable’; excessive fees, or unnecessary legal bills are likely to be challenged or appealed.

Finally, be aware that appointed Party Wall Surveyors should discharge their duties without fear or favour, in accordance with their statutory appointment. This is basically restricted to matters in pursuance of the Act, not the generality of building works ‘next door’. This may not be strictly in accordance with the wishes of the warring parties.

A Party Wall Surveyor should not be a hired gun.

  • From 2019-2021, Stuart served as Chairman of the London Branch and from 2015 to date National Council member of the Pyramus & Thisbe Club, a Learned Society to promote Education and Excellence in Party Wall practice and he remains on the board.

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