Unique Party Wall - Advice Please [Pics]

[Agripa30]

Hello

I’m in the process of buying a newbuild house and need some advice about the ownership and maintenance of a wall shared between my plot and a block of flats. This is my first ever house so pardon my ignorance.

To keep a long story short, the contract of sale which I haven't signed, states that the wall is boundary for my plot and that I’m responsible for the maintenance and periodical upkeep of it. This is off course a massive oversight by the developers which I have asked to be amended because the wall is colossal and should be maintained by a household for countless reasons.

Facts:

• The top of the wall is level with the soil of the garden. Only the fence is visible from the garden.
• The wall extend is length of my garden and that of a neighbouring plot.

In amending the contract of sale, the developer have the option to transfer maintenance to

1. The owners of the block of flats.
OR
2. The management company that will look after communal areas around the estate.

Regardless of who own maintenance, the wall will technically remain a boundary of my plot. What wording should I ask for to ensure that:

1. I’m not responsible for upkeep of the wall.
2. There is a legally binding agreement between me and party sharing the wall. Do I need a party wall agreement?


Any advice or insight is welcome.


Thanks

 

[Newboy]

Given the potential liability, you need formal legal advice regarding the contract - don't rely on random advice from the web.

 

[^woody^]

It's not a party wall and will be a straightforward contract issue regarding ownership, and will go in the house deeds or any lease agreement. The Party Wall Act does not apply.

If you own that house you would not want to own the wall or be responsible for it. Neither would you want the management company to be responsible for it as they would most likely be able to pass costs on to homeowners.

Btw, a wall is not a boundary. A boundary is a hypothetical line of zero thickness. The boundary will be along one face of the wall, or centrally through it.

 

[Doggit]

Assuming that it's the wall we see in the picture, then it goes along the bottom of your property, and the house next door, but you would only be expected to maintain your part of it I suspect that they forgot to allocate the ownership of the wall to the block of flats, and they're now trying to dump the responsibility for it onto you.

At the end of the day, do you consider that the wall is holding up your garden (therefore your responsibility), or that it's stopping you're garden from collapsing into the communal area, so belongs to the block of flats.

The management company has no legal ownership of anything, and will recharge their services to the appropriate owners, but the real question, is what have your solicitors got to say about it, as they should be protecting your interests, not just going through the motions.

 

[Agripa30]

Given the potential liability, you need formal legal advice regarding the contract - don't rely on random advice from the web.

I have solicitors but given that they failed to spot or raise this potential liability, I am seeking additional opinions and am contemplating a to appoint a second solicitor if necessary.

It's not a party wall and will be a straightforward contract issue regarding ownership, and will go in the house deeds or any lease agreement. The Party Wall Act does not apply.

If you own that house you would not want to own the wall or be responsible for it. Neither would you want the management company to be responsible for it as they would most likely be able to pass costs on to homeowners.

Btw, a wall is not a boundary. A boundary is a hypothetical line of zero thickness. The boundary will be along one face of the wall, or centrally through it.

Under transferee covenants it states:
"To keep in good and substantial repair or condition when necessary to replace and renew any walls and other boundary structure of fence."

From the surface of the garden, the fence is visible boundary while the wall is technically underground because it's beneath the fence and below the level of the plot.

So which is legally the boundary, the fence or a line that goes through the fence and the wall?

Assuming that it's the wall we see in the picture, then it goes along the bottom of your property, and the house next door, but you would only be expected to maintain your part of it I suspect that they forgot to allocate the ownership of the wall to the block of flats, and they're now trying to dump the responsibility for it onto you.

At the end of the day, do you consider that the wall is holding up your garden (therefore your responsibility), or that it's stopping you're garden from collapsing into the communal area, so belongs to the block of flats.

The management company has no legal ownership of anything, and will recharge their services to the appropriate owners, but the real question, is what have your solicitors got to say about it, as they should be protecting your interests, not just going through the motions.

Exactly. You can flip a coin as to whether the it's my retaining wall or a protective barrier for the flats.

Comically, the owner of the block flats completed 2 weeks ago! If the developers are to transfer ownership of the wall to the block of flats then it will have to be added to their existing contract.

Since Tuesday my solicitors are waiting for our amended contract of sale from the developer's solicitor. It could take another day or two because they will likely have to transfer ownership to the block of flats before they can give me a new proposal.

 

[Doggit]

Your solicitors wouldn't be expected to pick up on a subtle point like that, but thankfully you have, so they should now be able to advise you on it. As the owner of block of flats has already completed, they would now have to agree to a variance of the lease, and they might just, as the costs would very likely be passed on the flat owners themselves. If you refuse to accept responsibility of the wall, the vendor will very likely just put it back on the market.

 

[^woody^]

So which is legally the boundary, the fence or a line that goes through the fence and the

Please read my post again regarding what a boundary is.

In addition, a boundary line technically goes down to the centre of the earth, so just because the wall is underground, does not affect ownership and boundary responsibility.

The issue for you is where the boundary line is placed. And I would suggest that you get it properly defined on the deeds.

If that block of flats has already completed, then boundaries and ownership will already be defined, and no one can transfer that wall or move boundaries to the block of flats.

Looks like the wall is coming with the house.

 

[Doggit]

The boundary line goes down under the earth in America, but not in England; I think the crown owns the assets of the ground, and we effectively lease the topsoil, but you're right in what you're trying to point out. Fences and wall are used to define the boundary, but I think on reflection that I may have been wrong; I know that you can vary a lease afterwards as I've had to do it, but I'm not sure on the freehold, but as long as both parties agree, and the developers agree to pay the legal costs, I can't see why it couldn't be done.

 

[Agripa30]

Thanks everyone.

Having had a second look the fence actually sits before the fence which is good news. When I asked for clarification on Monday they said that the wall was the boundary, not the fence.

However on Wednesday the sales office have said that they have proposed amendments to the ownership of the wall, and that we will find out through the solicitor.

I am hoping that the resolution is to move the ownership of the wall to the block of flats, leave the fence which sits infront, as my boundary.

I will keep you all posted as soon as I hear anything.

 

[^woody^]

Having had a second look the fence actually sits before the fence

The fence is only like that because it was the only way to erect it.