[Question] My neighbour's building has parts that overhang the boundary, such as the eaves of the roof, the gutter, a pipe projection above the ground level; and the edge of the foundation under ground. Can I remove them so that I can now build my own wall on my own land?
[Answer] Yes, essentially you could using the Party Wall etc Act 1996.
Except....a cat has got amongst the pigeons...
An extremely important debate arose this week at the Pyramus and Thisbe Society's National Conference for Party Wall Surveyors. The message behind the topic would be far-reaching, as it could change the fundamentals of the purpose of some legislation. The topic was 'Easements'.
'Easements' really fall on the 'legalistic' side of a Party Wall Surveyor's remit, but in simple terms, an 'Easement' is a right for one property to have something or do something that affects another property. They can come about through the passage of time (i.e., been doing it long enough already) or by legally documenting an agreement (in a Deed).
So what does this have to do with Party Wall Surveyors? It is the long-held understanding that the Party Wall etc Act 1996 ['the Act'] has clauses that allow owners to go further than common law rights would permit; and, importantly for the aspect of [some] Easements, it 'supplants' [some] other legal positions.
Do Easements 'trump' 'the Act'; or does 'the Act' trump Easements?
So the relevant part of 'the Act' says "The building owner shall have the following rights... to cut away or demolish parts of any wall or building... overhanging the land..." This falls under Section 2(2)(h) (and a similar clause for footings falls under Section 2(2)(g)). You cannot leave the cut-off bits in a damaged state; the latter clause 2(5) makes it very clear there is a requirement to "make good".
So what was proposed this week?
Well, first, that if the overhanging parts are not there by Easement (i.e. they are a trespass), then Party Wall Surveyors can Award for those parts to be cut-off, but should do so without the Building Owner (the one doing that work) having the obligation, cost or expense of making good the damage. i.e. the Award leaves next door to sort out the consequences of result of the cut-off parts (such as water damage where gutters and eaves have been removed).
That cannot be right. Do what the Act says... it's "subject to making good all damage occasioned...".
[If a Building Owner does not want the cost of removing and making good of someone else's 'trespass', then that would need to be dealt with though other legal mechanisms.]
And it was said, second, that if the overhanging parts are there by Easement then Party Wall Surveyors cannot Award for those parts to be permanently cut-off, they can temporarily, and that must at the Building Owner's expense, BUT to be reinstated in the same place/position/arrangement as they were before.
That cannot be right either. Again, do what the Act says...it says you can. The long-held position is that 'making good' would include reinstating in a 'similar fashion' to what was there, in such a way that there is equal performance.
The reason cited for not being able to [permanently] remove an Easement was 'Section 9' of the Act. And that, to my mind, is where the confusion has arisen. Section 9 only relates to Easements in Party Walls, the example given is/was NOT a Party Wall, it is the neighbour's wall at the boundary.
It seems to me that when it comes to which 'trumps' which, the Party Wall etc Act 1996 is there to trump the Easements around overhanging parts. Why else is Section 2(2)(g)&(h) [as examples] there?
It does not go as far as over-riding other Easements, such as Rights of Way, Rights of Light or any Rights in or over Party Walls.... beacuse the Act doesn't say that.
Hopefully, clarification will come promptly; otherwise, there's going to be some surveyors awarding (or not awarding) things that will get them in hot water!
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