Everyone Misunderstands the Party Wall Act

I was taught as a student that the London Building Acts were written by party wall surveyors for the benefit of party wall surveyors. However, the 1996 Party Wall Act (which superseded the LBA in 1997) is a very different Act, but almost all party wall surveyors fail to understand. No one understands an argument when their salary depends upon them not understanding.

The surveyors who wrote the 1997 Act made it clear that it is important to read and understand the definitions of section 20 before considering anything else. By far the most important definition is that of ‘building owner’, - defined as ‘an owner of land who is desirous of exercising rights under this Act’. However, you don’t have to own land to be an ‘owner of land’. Similarly, you don’t have to own a building to be a ‘building owner’, and if you do own the building in question, you are still probably not a ‘building owner’. The phraseology of the Act is misleading. Nevertheless, understanding of the definition is essential to understanding the Act, yet almost no party wall surveyor advertising online tells you what a ‘building owner’ is. It would destroy their marketing strategy if they did.

The 1996 definition of ‘building owner’ contrasts with the definition found in the London Building Acts, which was, in effect, one of the adjoining owners desirous of doing work that affecting a party wall or party structure. If your proposed work, in inner London pre-1997, affected party structure you were, like it or not, a ‘building owner’, and you were under a statutory duty to serve a notice on the relevant neighbours.

This is no longer the case. Though, if you mistakenly think the 1996 Act extinguished common law rights to carry out work mentioned the Act, the new definition would be much the same as it was under the London Building Acts. And this is the mistaken interpretation of the Act found in the government’s ‘Explanatory Booklet’, and it’s the official advice from the RICS and the FPWS.

However, your common law rights have not been extinguished, and the situation remains as it was (outside inner London) before 1997: there is no Party Wall Act if you choose not to take advantage of the additional rights the Act offers.

The question of whether a property owner may rely on common law rights (and ignore the 1996 Act) was directly addressed in the case of Shah v Kyson & Power. Eight judges, including six Law Lords, have unanimously ruled ‘no Notice, no Act’. The Appeal Court, in 2023, thought the question of whether the Act exists where no Notice has been served, was an important question, arising directly in this case for the first time. And the Appeal Court’s judgement is clear. In the words of Lord Justice Lewison (78): until a Notice is served “the position remains governed by common law”. In other words: developers remain free to exercise their common law rights. Lord Lewison explained “it is the service of the party structure notice that causes the substitution of rights under the Act for common law rights”. And (96) ‘a building owner may rely on his common law rights’.

That last sentence is worth repeating: ‘a building owner may rely on his common law rights’. What’s not to understand? (Though, if the ‘building owner’ is relying only on his common law rights, he is not a ‘building owner’ as defined by the Act, but we still know what Lord Justice Lewison meant.)

This ruling upheld the earlier decisions of the Country Court and High Court. Kyson and Power sought leave to appeal to the Supreme Court, but leave to appeal was refused by Lords Reed, Stephens and Richards, who ruled that “permission to appeal be refused because the application does not raise an arguable point of law”.

These judgements mean the current advice from the government, the RICs and FPWS is completely wrong. But every party wall surveyor continues to rely on this outdated advice. It’s time the government advice was withdrawn or revised.

The ‘Explanatory Booklet’ states

The Act provides a framework for preventing or resolving disputes in relation to party walls, party structures, boundary walls and excavations near neighbouring buildings.

Anyone intending to carry out work (anywhere in England and Wales) of the kinds described in the Act must give Adjoining Owners notice of their intentions.

Both statements are untrue. The only way to get a ‘dispute’ is to serve a Notice. Triggering the Party Wall Act is a way to make a dispute highly likely, it is not a way to avoid a dispute. There were almost no disputes before 1997, but now estimates suggest over 100,000 disputes a year.

The Act doesn’t resolve disputes in the usual meaning of the word. The ‘resolution of disputes’ section doesn’t resolve disputes in a way that can be understood by anyone unfamiliar with Party Wall Act jargon. Section 10 is simply the mechanism for those wishing to take advantage of the rights the Act offers.

We know that a potential ‘building owner’ may still rely on his common law rights, so you can carry out work noted in the Act without serving Notice if common law rights are adequate. The ‘Explanatory Booklet’ is wrong.

If there was ever a subject where a little knowledge were a dangerous thing, it’s the Party Wall Act. If you have never heard of the Party Wall Act, it can’t occur to you to take advantage of the rights it offers, thus you won’t be defined as ‘building owner’, and you can’t serve a Notice, and with no Notice there is no Party Wall Act. The situation remains as it was (outside inner London) before July 1997, when there was no Party Wall Act. We happily worked on party walls, unable to serve a notice, and we relied on our common law rights. Common law rights were easy to understand, and I never had a problem.

The new message is simple: if your common law rights are adequate, you can ignore the Act.

The various rights the ‘building owner’ can exercise are listed in sections 1, 2 and 6 of the Act, and in order to exercise these rights the building owner serves a Notice on the adjoining owner. If the adjoining owner does anything other than consent within fourteen days, a ‘dispute’ arises, and section 10 (the so called ‘dispute resolution ’section’) is triggered. After two months you have additional rights to work on party walls. For example, raising, rebuilding, underpinning, the wall. Interestingly the Act does not say you have to await an Award. Even, in the event of a dispute, the appointment of surveyors is not essential.

It is, of course, possible to use the Party Wall Act to carry out work that your common law rights already allow. But that would generally be waste of time and money.

For a more detailed explanation of how best to take advantage of rights offered by the Act, email me on graham@grahamrix.co.uk There is much a ‘building owner’ can do without spending a fortune on Party Wall Surveyors. (Of course, no Party Wall Surveyor will explain that to you.)

I’m happy to advise potential building owners on how to work on or near boundaries without wasting money on Party Wall Surveyors, whilst working in an entirely legitimate way.

Of course, my view is a minority view at the moment. However a leading solicitor specialising in party walls, Matthew Hearsum, who has written, or co-written, four books on the subject, has recently written an article giving the best explanation of the PWA I’ve yet read.

 

Graham Rix
September 2025