Boundary Structures
Separate Ownership
The rights of adjoining owners depend on the nature of the party wall. Where the wall is owned by one, subject to easements for the other, the terms of that easement must be respected.
There may be no easements and the wall may be owned by one owner without easements for the adjoining owner. This would not usually be the case, where the wall is along the boundary.
The terms of an easement (e.g. of support) will depend on the terms of the deed or the circumstances, where they arise by implication or long use. They will usually be such as carry out the common intention of the parties in relation to the use of the wall.
Subject to the easements enjoyed by the other, the owning party may deal with the wall as he wishes. Each party is entitled at common law at his own expense to repair the other half of the wall as well as his own, to the extent necessary to preserve his easement. This right to repair does not relieve him of the risk of liability in negligence or nuisance in doing the works
Where a party wall is divided longitudinally with mutual rights of support, then each may not knock down his longitudinal half without the consent of the other as it will undermine the easement of support vested in that owner. At common law, temporary removal for reconstruction may be permitted. The matter is now regulated by the 2009 Act. See below.
Owners in Common
Where the whole party wall is held in common, each is entitled to the use of and support for the wall, with mutual rights to prevent its destruction. Party wall owners are not liable in trespass to each other. Each is the owner so that what would otherwise constitute trespass may be done by each co-owner.
The same principle applies where the wall is owned in common, subject to reciprocal easements. There may be mutual easements of support. Each party may use the wall for the contemplated purpose. Provided that this is done without negligence, there is no liability for nuisance.
The common law rule is that one co-owner may do anything short of ousting the other co-owner. An co-owner may not maintain trespass against the other for injury done to the wall unless there is a complete “ouster” or partial or total destruction of the property which is owned in common.
Where the actions of one party owner are such as to oust or destroy the effective benefit of the wall for the other, he is liable to that other. A demolition or alteration of the party may constitute an ouster or denial of his rights as co-owner.
The demolition of the whole wall for the purpose of replacement with a better wall is not usually and ouster, so as to enable the co-owner to maintain trespass. The demolishing owner must exercise reasonable care and skill and must carry out the work without delay. Neither owner may underpin the wall, unless this may be done without injury to the other.
There is no obligation on party wall owners as such, to repair. However, if by neglect or failure, the wall becomes a nuisance, an obligation to repair may effectively arise.
At common law, a person undertaking work to abate a nuisance may be able to recover the costs of the work from the party in default. Under the new party wall legislation, an equitable contribution may be sought.
The common law position is now subject to the terms of the party wall legislation in the Land and Conveyancing Law Reform Act.
Natural Right of Support
Similar to the easement of support is a natural right of support by land. This right of support is enjoyed by adjoining owners and inheres in the interest in the land itself. It is not an easement.
The natural right of support relates only to land in its natural state. Accommodation for buildings or other artificial structures requires an easement by implication, prescription or grant. The easement of support arises automatically. It is not extinguished by union in a single owner.
Landowners have rights to both lateral and adjacent support and to horizontal and subjacent support. The right is to support of the land at its natural level.
The right of support of land commonly arises in the context of works at or near a boundary. The right of support is not an easement but is as a “natural” right. The right of the neighbour places an obligation on the adjoining owner to forbear from doing that which interferes with the support provided to the neighbour’s property. He may replace the original means of support, provided that no damage is done to the adjoining property.
Where a person causes his neighbour’s land to subside by excavating at the boundary, he is liable for the damage caused. Even if the owner has a right to mine, he may not remove the support afforded unless expressly permitted by statute.
The natural right of support continues when buildings are erected on the land. However, this does not increase the burden on the neighbouring owner. Strictly speaking, there is no infringement of the right, if the right of support is removed which damages a building or house but would not have damaged land in its natural state. However, the right of support for the building may subsist by an easement.
Easements of Support
Easements of supports are expressly granted in the context of apartments and other multi-unit developments. Even if not granted, they are likely to arise by implication. This may occur where a semi-detached house or terraced house is conveyed. In this case, the right of support will generally subsist by an implied easement or an easement of necessity.
An easement of support can be acquired by the buildings being in situ for the requisite period. However, the owner affected must know that his property is affording support to the other. This arises from basic principles regarding the acquisition of the easement. The adjoining owner must know that there is an exercise of rights affecting his property, to which he does not object for the requisite period.
The subsidence need not necessarily be the result of works on the adjoining land. It may be a consequence of work on land adjoining that latter land.
Boundary Buildings and Repair
Buildings are commonly supported by other buildings, particularly in the case of terraced or semi-detached properties. If an adjoining owner alters or removes his building, he must shore up the other adjoining property so as the ensure that is not damaged or affected.
The traditional rule was that neither party was inherently obliged to repair his property. The fact that the adjoining owner lets his property fall into decay and ruin does not constitute a breach of the easement. An easement of support protects against the removal of support without substitution of equivalent support. This arises from the reluctance of courts to impose easements with positive obligations.
If an adjoining owner lets his property fall into decay, the owner with the right of support may be entitled to enter to abate the damage. There have been suggestions that the law of negligence may be such that an adjoining owner may not let his house fall derelict to the detriment of his neighbour. The courts may impose a duty of care arising from their physical proximity.
There is no inherent easement for protection against the wind and weather. Where a party exposes his neighbour to damp, rot and wet penetration, then traditionally he has no liability for loss incurred. An easement of support may contain an element of protection against wind or weather.
Old Statutory Procedure
The Dublin Corporation Act 1890 and certain other local acts made provision in relation to party structures. It applies only to the local authority areas where such acts apply. It gives the landowner the right to enter the property of an adjoining owner to carry out works and repair to the party wall. The person intending to do works is given the right to make good or repair any party structure which is defective or in a state of disrepair.
The adjoining owner may pull down and rebuild any party structure, which is so defective that it makes it necessary or desirable to pull it down. He may replace a party structure which is of insufficient strength for a building which is intended to be built, with a wall of sufficient strength for such purpose. The adjoining owner has the right to cut away and remove any part of the wall which overhangs his ground in order to erect an upright wall.
Before exercising such rights, the building owner must give at least three months’ notice to the adjoining owner of his intention to commence work. If within 14 days the adjoining owner refuses to give consent, he is deemed to have refused consent and a dispute is deemed to have arisen.
A dispute is referred to arbitration by an agreed arbitrator. If they do not agree, it may be referred to three arbitrators, the third arbitrator being appointed by both arbitrators (each appointed by either party). When the arbitrators make an award, the building owner is entitled to enter the premises in accordance with it. Obstruction is an offence.
Modern Statutory Procedure
The Land Conveyancing Law Reform Act 2009 provides a procedure for works to a party wall or other structure. It may be at or near the boundary.
A “party structure” means any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure which horizontally, vertically or in any other way—
- divides adjoining and separately owned buildings, or
- is situated at or on or so close to the boundary line between adjoining and separately owned buildings or between such buildings and unbuilt-on lands that it is impossible or not reasonably practical to carry out works to the structure without access to the adjoining building or unbuilt-on land,
It also includes any such structure which is—
- situated entirely in or on one of the adjoining buildings or unbuilt-on lands, or
- straddles the boundary line between adjoining buildings or between such buildings and unbuilt-on lands and is either co-owned by their respective owners or subject to some division of ownership between them;
Building Owner
A “building owner” means the owner for the time being of any estate or interest in a building or unbuilt-on land who wishes to carry out works to a party structure. A “building” includes part of a building.
A building owner may carry out works to a party structure for the purpose of—
- compliance with any statutory provision or any notice or order under such a provision, or
- carrying out development which is exempted development or development for which planning permission has been obtained or compliance with any condition attached to such permission, or
- preservation of the party structure or of any building or unbuilt-on land of which it forms a part, or
- carrying out any other works which will not cause substantial damage or inconvenience to the adjoining owner, or if they may or will cause such damage or inconvenience, it is nevertheless reasonable to carry them out.
The grant of planning permission does not grant a proprietary right. The applicant must have a proprietary right. The planning authority does not determine ownership of land, party walls or boundary.
Works include—
- carrying out works of adjustment, alteration, cutting into or away, decoration, demolition, improvement, lowering, maintenance, raising, renewal, repair, replacement, strengthening or taking down,
- cutting, treating or replacing any hedge, tree or shrub,
- clearing or filling in ditches,
- ascertaining the course of cables, drains, pipes, sewers, wires or other conduits and clearing, renewing, repairing or replacing them,
- carrying out inspections, drawing up plans and performing other tasks requisite for, incidental to or consequential on any of the above works.
Conditions of Exercise
In exercising any of the above rights, the building owner shall—
- make good all damage caused to the adjoining owner as a consequence of the works, or reimburse the adjoining owner the reasonable costs and expenses of such making good, and
- pay to the adjoining owner the reasonable costs of obtaining professional advice with regard to the likely consequences of the works, and
- pay to the adjoining owner reasonable compensation for any inconvenience caused by the works.
The building owner may—
- claim from the adjoining owner as a contribution to, or deduct from any reimbursement of, the cost and expenses of making good such damage above, or
- deduct it from compensation above,
such sum as will take into account the proportionate use or enjoyment of the party structure which the adjoining owner makes or, it is reasonable to assume, is likely to make.
Court Order
If a building owner fails within a reasonable time to—
- make good damage, the adjoining owner may apply to the District Court for an order requiring the damage to be made good and on such application the court may make such order as it thinks fit, or
- reimburse the above costs and expenses or to pay reasonable costs or compensation as above, the adjoining owner may recover such costs, expenses or compensation as a simple contract debt in a court of competent jurisdiction.
It an adjoining owner fails to meet a claim to a contribution, the building owner may recover such contribution as a simple contract debt in a court of competent jurisdiction.
An “adjoining owner” means the owner of any estate or interest in a building or unbuilt-on land adjoining that of the building owner;
Works orders.
A building owner who is in dispute with an adjoining owner with respect to exercise of the above rights may apply to the District Court for an order authorising the carrying out of specified works (a “ works order ”).
In determining whether to make a works order and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard to the above permitted bases, and may take into account any other circumstances which it considers relevant.
Terms and conditions of works orders.
A works order shall authorise the carrying out of the works specified, on such terms and conditions (including those necessary to comply with the permitted basis (e.g. planning permission etc., necessity etc ) as the court thinks fit in the circumstances of the case.
Without prejudice to the generality of this a works order may—
- authorise the building owner, and that owner’s agents, employees or servants, to enter on an adjoining owner’s building or unbuilt-on land for any purpose connected with the works,
- require the building owner to indemnify or give security to the adjoining owner for damage, costs and expenses caused by or arising from the works or likely so to be caused or to arise.
A works order shall not authorise any permanent interference with, or loss of, any easement of light or other easement or other right relating to a party structure.
On the application of any person affected by a works order, the court may discharge or modify the order, on such terms and conditions as it thinks fit.