This paper aims to consider the right created by section 8 of the Party Wall etc. Act 1996, which allows an owner of a property to enter on to an adjoining owner's property without their consent, while protecting the adjoining owner's legal rights. It identifies the procedures that an adjoining owner has to prevent unlawful access and to protect themselves from damages arising from the access.
The paper reviews the implementation of that part of the Act dealing with access, informed by the author's professional experience as a party wall surveyor.
While there is an explicit right of access on to an adjoining owner's property, the access is for works “in pursuance of the Act”. If the building owner can satisfy this criterion then the right of access is provided. If not, the access is a trespass and therefore should be dealt with as a tort in common law. The paper identifies the correct processes and factual evidence required to achieve access.
This paper makes a contribution to the limited existing literature and theoretical interpretations of the Party Wall etc. Act 1996. It provides a framework for considering the procedures and principles necessary to achieve a right of access, while protecting the adjoining owner rights.
Emerald Group Publishing Limited
Copyright © 2011, Emerald Group Publishing Limited