What is the ‘intended use’ of a wall?
I think we can all agree that most of us understand the main purpose of a wall. However in the eyes of the Party Wall Act there are subtle differences in the ‘intended use’ of a wall, over and above just ensuring that your building remains upright. These differences will determine the responsibilities of adjoining building owners should a defect occur, but more importantly than that, they will also determine what constitutes a defect and what does not.
The precedent around which any judgement in this area is based was set in 1913, with the case of Barry v Minturn. The case focussed on a wall which formed a retaining wall of an extension on the building owner’s side, but a garden wall on the adjoining owner’s side. Following dampness issues, the building owner sought a party wall award to rectify the dampness from the adjoining owner’s side. The surveyors concluded that the wall was not in need of repair on the adjoining owner’s side as dampness in a garden wall did not constitute a ‘defect’. The House of Lords backed the decision citing that dampness was not a defect as it did not render the wall less effective for its intended use, i.e. as a garden wall, and was therefore immaterial and not in need of repair. As the damp wall was not fit for intended use on the side of the building owner, and therefore did constitute a defect, she was therefore permitted to carry out work from her side of the wall at her own expense.
The implications of the case mean that consideration should be given to the intended use of a wall, not only on existing structures, but also when planning the extension or remodelling of buildings. If you change the intended use of a wall from an exterior to an internal wall, it is worthwhile erring on the side of caution when considering the damp proofing options in the knowledge that the adjoining owners obligation is only to maintain the wall in line with how they intend to use it. As the occurrence of damp on an exterior wall is of little or no inconvenience, and therefore not considered to be a defect, a more cautious approach could save a far larger sum on remedial repairs to a shared wall, for which you alone would have to foot the bill.
Finnegan Property Services are a firm of Chartered Building Surveyors with experts on Party Wall matters and its implications on property. If you have a query or require further information please contact us on firstname.lastname@example.org or call 020 3137 8078
Posted on 2 October, 2015