Building on a boundary wall

The law has changed significantly in the past year or so.

Read through Chapter three of this:
http://www.attorneygeneral.ie/eAct/2009/a2709.pdf

pp 38-41, S 43-47.

“The Land Conveyancing Law Reform Act 2009.”

Hasn’t been tested in the Courts yet to the best of my knowledge.

Also read the Planning and Development Regulations 2001
http://www.irishstatutebook.ie/2001/en/si/0600.html

Exempted Development Schedule Class 1

As amended by the Planning and Development Regulations 2008
http://www.irishstatutebook.ie/2008/en/si/0235.html

Exempted Development Schedule Class 50

ONQ.

To answer quite simply, you cannot interfere with, build on, demolish, etc., a boundary or party wall without the consent of the other party.

Boundary/party walls are mutually exclusive and both parties jointly own the entire wall, so you cannot build on top of ‘your side’ of the party wall without the others consent.

Hi Doc,

I suggested the OP should read something, and noted that it hasn’t been tested in law.
This below legislation dosn’t seem to support the rights about which Architects have advised their clients over the past century.
It seems to interfere with people’s private rights, undermine established precedent in law, and confers rights of redress and compensation that perhaps only the wealthy can afford.
Allow me to point out some issues arising in the Act.

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Party structures

43.—In this Chapter, unless the context otherwise requires—
“adjoining” includes adjacent;
“adjoining owner” means the owner of any estate or interest in a
building or unbuilt-on land adjoining that of the building owner;
“building” includes part of a building;
“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;
“the court” means the District Court;
“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—

“works” include—
(a) carrying out works of adjustment, alteration, cutting into
or away, decoration, demolition, improvement, lowering,
maintenance, raising, renewal, repair, replacement,
strengthening or taking down,
(b) cutting, treating or replacing any hedge, tree or shrub,
(c) clearing or filling in ditches,
(d) ascertaining the course of cables, drains, pipes, sewers,
wires or other conduits and clearing, renewing, repairing
or replacing them,
(e) carrying out inspections, drawing up plans and performing
other tasks requisite for, incidental to or consequential
on any works falling within paragraphs (a) to (d);
“works order” means an order under section 45(1).

44.—(1) Subject to subsection (2), a building owner may carry out
works to a party structure for the purpose of—
(a) compliance with any statutory provision or any notice or
order under such a provision, or
(b) 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
(c) preservation of the party structure or of any building or
unbuilt-on land of which it forms a part, or
(d) carrying out any other works which—

(2) Subject to subsection (3), in exercising any right under subsection
(1) the building owner shall—

(3) The building owner may—
(a) claim from the adjoining owner as a contribution to, or
deduct from any reimbursement of, the cost and expenses
of making good such damage under subsection (2)(a), or
(b) deduct from compensation under subsection (2)(b)(ii),
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.
(4) If—
(a) a building owner fails within a reasonable time to—

(b) an adjoining owner fails to meet a claim to a contribution
under subsection (3)(a), the building owner may recover
such contribution as a simple contract debt in a court of
competent jurisdiction.

45.—(1) A building owner who is in dispute with an adjoining
owner with respect to exercise of rights under section 44 may apply
to the court for an order authorising the carrying out of specified
works (a “works order”).
(2) 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 section 44 and may take into account any
other circumstances which it considers relevant.

46.—(1) Subject to subsection (3), a works order shall authorise
the carrying out of the works specified, on such terms and conditions
(including those necessary to comply with section 44) as the court
thinks fit in the circumstances of the case.
(2) Without prejudice to the generality of subsection (1), a works
order may—

(b) 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.

(3) 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.

47.—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.

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My reading of the act suggests that under this Act Joe Developer can buy a house or building and then proceed to do more ore less what he wants to do to a party structure in accordance with a Works order, subject to a contrary Court order, and the caveat in S. 46 (iii) and S. 47.
This seems to bring in the 1832 Prescription Act and Rights to Ancient Light, which can be onerous to prove and may relate only to particular uses, particular users and particular windows or walls.

On reading of it is that it paves the way for draconian measures to be introduced in the future targeting owners of older listed properties to get on and repair them – they have no excuse arising from an adjoining owner now.
But for ordinary people there seem to be onerous implications – not only can you kiss your existing boundary treatment goodbye, but also your herbaceous border you’ve tended for twenty years, planted by your deceased beloved, together with your picket fencing that you love – only to see it replaced by a 2.0M garden wall in English or Flemish bond, capped in Granite and a security mesh – to be swiftly followed by a bill for €20,000 – say, half the cost, because of the alleged “benefit” you will get from all this trauma and a wall you didn’t want.

The only redress or relief seems to be through spending another €20,000 taking it to the Circuit Court.
I can see where bolshie owners on the other side of a wall might compromise works needing to be carried out a listed building.
But thescenario I outline above could easily come to pass to the great harm of a person of limited means living in the adjoining house.
Particularly eregious is the provision that the owner carrying out the development can, if he is wealthy enough, seek to impose his will throug the Courts.

The old rights of planning law not superceding the law of the land meant that even though a permission was got, it couldn’t proceed unless certain consents were obtained.
That all seems to have shifted hugely now – basically this Act seems to be an opening of the way for people who have obtained permission and are building on or near a boundary.

This Act may be the greatest erosion of property rights ever, where the concept that a persons home is his castle goes out the window.
Three different builders on three sides of your back garden can erect three different boundary walls, making the enclosure of your back garden look like a total dogs dinner, and each of then could hit you for a bill for the privilege!

Was this a clever ploy by the legal profession to make a few quid out of wealthy Tiger property owners who decided to fight over a boundary issue?
Otherwise, it looks like somebody hasn’t thought this through properly – I shall have to give this new Act some consideration. 🙂
Can’t wait to see what including horizontal party structures will lead to in apartments or flying freehold sites.

ONQ.

Thanks ONQ, I’ve been meaning for a while to read up on that and did not get around to digging it out possibly because of bad memories.

Look at your hypothesis from the other side. I once had a party wall problem – a big old house, another built in its grounds for a family member, both change hands several times and part of the boundary between the two ended up as the side of what is now my house. Neighbour always wanted to buy me out (logical, to consolidate the site and increase value/potential) but price offered always was far below market value and no premium. A very difficult nasty guy, he then saw a means to make my life difficult and would not allow me access for necessary repairs to the house wall and gutters (even though it is 100m+ from his house). Back in the ‘90’s he wanted I think 20K to allow me access. I got counsel’s opinion and learned that I had no redress under law.

The tennant in neighbour’s house had no problem with the proposed work, I took a chance, was caught, gardai were called, told them it was a civil matter but that did not stop my builder walking off site. Eventually, with new builder (a mate I brought up from Kerry) I had to take out 2 bedroom windows, cantilever out scaffolding to do a repair (superficial) job. While this was going on I faced a barrage of legal crap about “invasion of airspace” which I ignored and it died, like the Lawsonias which he used to plant next to the wall. :confused:;)

Under the new Act I could write to him stating that I needed to carry out necessary repairs; if he denied permission I would again write stating that I intended to go to court under Section 45 1 to exercise my rights and would also be looking for my costs.
I would be quite confident that I would be successful on both counts. Judges (Circuit Court & up) in my experience always recognize a s#1t and treat them accordingly.

If somebody wanted to build an expensive wall in lieu of a fence/hedge and bill me for 50%, I would tell him/her that the existing boundary was adequate, that there is no need for a replacement but if they wanted to proceed at their own expense I would give adjoining owner’s consent. In their position I would be reluctant to go to Court to try for a 50% contribution.
Rs
Kb2

@KerryBog2 wrote:

Thanks ONQ, I’ve been meaning for a while to read up on that and did not get around to digging it out possibly because of bad memories.

Look at your hypothesis from the other side. I once had a party wall problem – a big old house, another built in its grounds for a family member, both change hands several times and part of the boundary between the two ended up as the side of what is now my house. Neighbour always wanted to buy me out (logical, to consolidate the site and increase value/potential) but price offered always was far below market value and no premium. A very difficult nasty guy, he then saw a means to make my life difficult and would not allow me access for necessary repairs to the house wall and gutters (even though it is 100m+ from his house). Back in the ‘90’s he wanted I think 20K to allow me access. I got counsel’s opinion and learned that I had no redress under law.

The tennant in neighbour’s house had no problem with the proposed work, I took a chance, was caught, gardai were called, told them it was a civil matter but that did not stop my builder walking off site. Eventually, with new builder (a mate I brought up from Kerry) I had to take out 2 bedroom windows, cantilever out scaffolding to do a repair (superficial) job. While this was going on I faced a barrage of legal crap about “invasion of airspace” which I ignored and it died, like the Lawsonias which he used to plant next to the wall. :confused:;)

Under the new Act I could write to him stating that I needed to carry out necessary repairs; if he denied permission I would again write stating that I intended to go to court under Section 45 1 to exercise my rights and would also be looking for my costs.
I would be quite confident that I would be successful on both counts. Judges (Circuit Court & up) in my experience always recognize a s#1t and treat them accordingly.

If somebody wanted to build an expensive wall in lieu of a fence/hedge and bill me for 50%, I would tell him/her that the existing boundary was adequate, that there is no need for a replacement but if they wanted to proceed at their own expense I would give adjoining owner’s consent. In their position I would be reluctant to go to Court to try for a 50% contribution.
Rs
Kb2

Excellent rebuttal Kb2 and its a pleasure to see someone thinking like this.
Some people online adopt positions based on having taken mortal insult when someone [me] is “takeing a position” to make an argument.

That’s not to say what I said WON’T happen to some poor old dear but its great you gave the other side in both the pro-and negative comments I made.
On the Act wording, you’re very welcome and sifting through it like this was something I have been meaning to do for a while – just never got around to doing it – it helps a bit, doesn’t it?
You could highlight it differently and take a few different interpretations out of it.

There is no doubt but that the law has been abused in this regard over the years and people have made a lot of money out of it.
I was talking to a guy only yesterday who told me the sorry take of a young solicitor asked to take a brief on an emerging case who actually mediated and sorted out the problem to both parties satisfaction.
He returned to the office thinking he was the bees knees only to be fired from his position for having lost his firm potentially hundreds of thousands of Euros in adversarial legal actions on behalf of one of the parties.
I don’t know it this is true, but it certainly accords with the mindset of some prominent solicitors I have met and worked with over the years.

I suppose my basic point is that ordinary people are afraid of going to Court and to leave Court action as the sole remedy opens the door for abuse by both litigious people and aggressive wealthy developers.
If there are are many of the latter, may they buy beside the former and let them go at it hammer and tongs! 🙂

ONQ.