When is a party wall not a party wall? Common misconceptions about the Party Wall Act

Martin De Ridder, Managing Director of Ansons Law, who acts in neighbour and boundary disputes, explains what the Party Wall etc. Act 1996 does, what it does not do, and why the first question most people ask about it is usually the wrong one.

Most people meet the Act when a neighbour starts building. The phone call that follows is nearly always the same: "there's no party wall agreement in place." Sometimes that matters a great deal. Often it is beside the point, because the wall is not a party wall and the Act was never going to apply. Knowing which situation you are in decides everything that follows, including whether you go to a surveyor or to court.

Key takeaways

• The Act came into force on 1 July 1997 and applies throughout England and Wales.
• The Act sets out procedures to help avoid and settle disputes concerning party walls and other shared structures, certain walls on property boundaries, and excavation works close to neighbouring buildings.
• The Act applies to particular walls and particular works, not to everything built near a boundary.
• Whether a wall is a party wall depends on where it stands and what it does, not on who owns it or who uses it.
• A timber fence is never a party fence wall.
• If no notice was served, the Act's dispute resolution machinery never starts, and your remedies are the ordinary ones in court.
• The Act does not decide where a boundary runs, does not deal with structures overhanging your land, and gives nobody a veto.

What does the Act actually call a party wall?

Section 20 of the Act contains the definitions, and they are narrower than most people expect.

A party wall is either:

• a wall which forms part of a building and stands on the lands of different owners, to a greater extent than the projection of any footing the wall rests on; or
• so much of any other wall as separates buildings belonging to different owners.

A party fence wall is a wall which is not part of a building, stands on the lands of different owners, and is used or built to separate those lands. A garden wall built astride the boundary is the usual example.

A party structure is wider again. It includes a party wall, and also a floor or partition separating parts of buildings approached by separate staircases or entrances. That is how the Act reaches flats.

A wall that does not fall within one of those definitions is simply a wall, and the Act has nothing to say about it.

"We don't share it, so it isn't a party wall"

Sharing is not the test. Neither is ownership, nor who paid for it, nor who uses it.

A wall that forms part of a building and straddles the legal boundary is a party wall even if only one neighbour has ever used it, built it or maintained it. Your neighbour's garage wall can be a party wall for the whole of its length without you ever having touched it.

The qualifier about footings matters. If the wall itself sits wholly on one side of the line and only the concrete footing projects underneath into the neighbouring land, that is not enough to make it a party wall.

"The fence between us is a party fence wall"

A timber fence is not a party fence wall, whatever the two of you call it. The Act requires a wall, so close-boarded panels, post and rail and trellis all fall outside it, and so do hedges.

A masonry garden wall built astride the boundary is a party fence wall. One built entirely on one owner's land is not, and the Act says expressly that a wall does not become a party fence wall merely because its footings project into the neighbouring land.

"The wall is on their land, so the Act cannot apply"

The second limb of the definition is easy to miss. A wall standing wholly on your neighbour's land is still a party wall to the extent that it separates your building from theirs. The common example is a wall built entirely within one plot which the owner next door later builds up against. From the moment two buildings are divided by it, that part of the wall is a party wall and works to it are notifiable.

"There's no party wall agreement, so the work is unlawful and I can stop it"

This is the most expensive misconception, and the law changed direction on it recently.

In Power v Shah [2023] EWCA Civ 239 the Court of Appeal held that if a building owner serves no notice, the dispute resolution procedure in section 10 is never engaged. The adjoining owner cannot appoint surveyors, and any award they obtain is void. As Lewison LJ put it, agreeing with the trial judge, "no party structure notice, no Act".

That does not leave you without a remedy. The Court was clear that the adjoining owner keeps all the usual common law rights, and can sue in trespass, nuisance or negligence and seek an injunction where appropriate.

So the absence of an agreement does not by itself make the work unlawful, and it does not give you a route to a surveyor's award. It pushes the dispute into court, and that is where the claim has to be built.

"Serving notice gives me a veto"

It does not. The Act is not a planning regime, and consenting to a notice is not approving the project.

If you dissent from a notice, a dispute is deemed to have arisen and surveyors are appointed. Their award governs how the work is done, not whether it is done at all. They can set working hours, require a schedule of condition, direct protective measures and deal with costs, but they cannot refuse a building owner rights the Act confers. An award can be appealed to the county court, but only within 14 days of service.

"The Act will sort out where the boundary runs"

It will not. Surveyors appointed under the Act have no power to determine the legal boundary, and an award does not settle it. A boundary dispute is a separate matter for the court, usually with expert evidence.

Two related points come up constantly. The Act does not deal with things that overhang your land: a roof, eaves, guttering or an extract fan projecting over the boundary is a trespass, actionable in its own right, and no party wall notice is needed before you complain about it. Nor does the Act override easements. Section 9 preserves rights of light and other easements, so an award cannot authorise interference with them.

So what should you use the Act for?

The Act gives a building owner rights beyond their ordinary common law rights, and gives the neighbour protection in return. It is worth using properly in three situations.

• Building on the line of junction. Where you want to build a new wall on or up to the boundary between two plots that are not already built on, section 1 applies and one month's notice is required.
• Works to an existing party structure. Section 2 covers cutting into a party wall, raising it, underpinning it, inserting a damp proof course, bearing beams on it, removing chimney breasts and demolishing and rebuilding. Two months' notice is required.
• Excavation near a neighbouring building. Section 6 applies where you excavate within three metres of a neighbouring building and below the level of its foundations, or within six metres and below a line drawn down at 45 degrees from their foundations. One month's notice is required.

Used properly, the Act is a practical tool rather than a formality. It gives a right of access to the neighbouring land, produces a schedule of condition that protects both sides if damage is later alleged, allocates the cost of the works and the surveyors, and allows an adjoining owner to require security for expenses before work starts. None of that is available to someone who builds first and argues afterwards.

What works are not caught by the Act?

Minor work to a party wall will not generally require notice under the Party Wall etc. Act 1996. Examples may include:

• making holes for screws and wall plugs to secure standard shelving or wall-mounted units;
• creating recesses for new or replacement electrical cables and sockets; and
• stripping off existing plaster and applying a fresh coat.

Whether notice is required depends on the nature and extent of the proposed work. In particular, consider whether it could weaken the wall, affect its ability to provide support, or damage the neighbour's side. Work should not be assumed to fall outside the notice requirements simply because it appears on this list.

What should you do now?

If you are planning work:

• Establish whether any wall you will touch is a party wall, a party fence wall or a party structure, and whether you will excavate within the section 6 distances.
• Serve the right notice in good time before work starts. Planning permission, permitted development rights and building regulations approval are separate regimes, and none of them removes the need for a notice.
• Keep a dated photographic record of the neighbouring property before you begin.

If your neighbour has started work:

• Ask whether a notice was served, and keep a copy of everything.
• Photograph the work as it progresses, with dates.
• Object in writing straight away. Delay rarely helps and, where you want an injunction, it can be held against you.
• Take advice early on whether your complaint is a party wall matter at all.

How we can help

Our Property Litigation Team acts for homeowners and developers in party wall, boundary and neighbour disputes, including injunctions to stop or reverse building work. We will tell you at the outset whether the Act helps you or whether your claim lies elsewhere.

If you need advice on a party wall or a dispute with a neighbour about building work, please fill out the contact form on this page, email info@ansons.law or call 01543 267988 and a member of our Property Litigation Team will get back to you.

This article is for general information only and does not constitute legal advice. Specific legal issues always require the advice of a qualified legal professional.