Questions for the wise

[geraldthehamster]

I don't see how a raised half of a party wall, whether tiled or not, can be "overhanging" the party wall. "Overhanging" is the term used in the party wall act.

 

[Nakajo]

I appreciate that you don't see it, but I think it's time to move on.

 

[geraldthehamster]

You may think that. It seems to me that the raised part of the party wall is now part of the party wall. The only provision that mentions removing part of a party wall is:

"(b) to make good, repair, or demolish and rebuild, a party structure or party fence wall in a case where such work is necessary on account of defect or want of repair of the structure or wall"

So I'm still left wondering which provision is felt to apply.

 

[wessex101]

I don't see how a raised half of a party wall, whether tiled or not, can be "overhanging" the party wall. "Overhanging" is the term used in the party wall act.

One last try. If the wall was entirely a structure belonging to the neighbour as you said in #6 then it should have been built entirely on the neighbour's property and not touching or encroaching above the party wall, as it stands it overhangs the party wall by approx. 4.5" maybe more.

If it is a "raising of the party wall" as you are now claiming then it becomes part of the party wall the OP has rights to use it and alter it as necessary.

In effect (and I am getting outside of my comfort zone here) the thickness of the party wall is like a no mans land or a DMZ. Although the boundary might technically run up the centre of the party wall the wall itself and the space directly above it has "special" shared status. Hence why you can't do whatever you like on "your" half of the wall, you have rights and responsibilities over the entire wall so you have to serve notice on the neighbour and reach an agreement.

 

[geraldthehamster]

You're right that I shouldn't have referred to "the neighbour's structure". I misread the original post. It's a party structure, which the act appears only to allow to be demolished and rebuilt "in a case where such work is necessary on account of defect or want of repair of the structure or wall". That's not the case here.

I'm not disputing that in practice this kind of thing might happen, and of course anything at all can happen by agreement. I would just like to someone to show which provision in that section of the act would cover it.

 

[Nakajo]

Well, to recap, the provisions of Section 2(2)(h) allow the building owner [my emphasis]

'to cut away or demolish parts of any wall or building of an adjoining owner overhanging the land of the building owner or overhanging a party wall, to the extent that it is necessary to cut away or demolish the parts to enable a vertical wall to be erected or raised against the wall or building of the adjoining owner'

I've emphasised bits, but really the statement needs to be understood in its entirety.

A building owner has the right to cut into a party structure, including straddling the line of junction, for any purpose.

 

[geraldthehamster]

The wall isn't overhanging the party wall, it's part of the party wall. It's not a "wall ... of an adjoining owner".

 

[Nakajo]

That's not a reasonable interpretation. If it was, then the underlined statement 'or overhanging a party wall' would be redundant. It is the wall of the adjoining owner because it sits above the shared party wall, and until the building owner extends vertically, the wall exists only for the enjoyment of the adjoining owner.

 

[geraldthehamster]

So it hinges on the meaning of the word "of". Is this why lawyers are well off?

An outbuilding adjacent to a party wall could have eaves or guttering that overhang the party wall.

 

[wessex101]

It is 2 (2) (a) and (e).

(a) gives the OP the right to raise the party wall.

(e) allows him to demolish and rebuild existing party structure which is of insufficient strength or height for the purposes of any intended building.

 

[geraldthehamster]

How is it of insufficient strength or height?

 

[Nakajo]

It's Section 2(2)(h). The meaning of the word 'of' is irrelevant. An outbuilding built near to or adjacent a party with overhanging eaves would either be a trespass or a servitude ('eavesdrop') - a different kettle of fish.

 

[geraldthehamster]

How about the meaning of the word "hang"?

 

[^woody^]

What are you two actually arguing about?

 

[Nakajo]

See. I knew it was going to be like this.