Overview
Making use costs are often incorrectly referred to as enclosure costs.
Where a party fence wall is rebuilt as a party wall and the adjoining owner later makes use of that wall, section 11(11) of the Party Wall etc. Act 1996 may require the adjoining owner to pay a due proportion of the cost.
This can be a complex calculation. The important question is: what costs should be included?
1. Understanding section 11(11)
In broad terms, section 11(11) provides that where an adjoining owner makes use of work carried out at the building owner's expense, they must pay a due proportion of the expenses. The calculation is based on the cost of carrying out the relevant work at the time the later use is made.
2. What costs might be included?
The possible approaches include:
- the whole new wall and foundation;
- the whole new wall, excluding the foundation;
- the new wall minus the area of the original party fence wall;
- the new wall minus the original wall area, but including the new foundation.
The correct answer will depend on the facts, the nature of the original wall, the new wall and the later use being made.
3. Example: single-storey rear extension
In one Fulham example, an adjoining owner built an extension after a 1500 mm high boundary wall had previously been demolished and rebuilt as a compliant cavity party wall astride the boundary.
The question was whether the adjoining owner should pay towards:
- the entire new wall and foundation;
- the new wall but not the foundation;
- the new wall minus the original party fence wall area, but including the new foundation.
Following discussion and informal third surveyor input, the adopted approach was to include the new wall minus the original party fence wall area, but to include the whole new foundation.
An expert legal panel later supported the view that the whole new wall and foundation could properly be included.
4. Best practice
To avoid disputes, surveyors should agree the calculation basis early.
Where the sums justify it, informal third surveyor input or legal advice can help avoid a disproportionate dispute.
Summary
Making use costs should not be guessed. The calculation should identify what was built, what is now being used, what cost would be incurred at the time of later use and what proportion is properly payable.
For expert advice on making use costs and section 11(11), contact Coburns Party Wall.
Email: info@coburnspartywall.co.uk
Phone: 0207 11 88 3 55
Disclaimer
This article is for general information only and is not legal advice. It is not tailored to any specific property, project or dispute. Always seek advice from a suitably qualified professional before taking action.
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Learn how making use costs are calculated under section 11(11) of the Party Wall Act when a party fence wall has been rebuilt and later used.
Calculating making use costs for rebuilt party fence walls | Coburns Party Wall