Question
A ground-floor flat leaseholder plans to underpin rear external walls that are not party walls. What notices should be served on the freeholder and the leaseholder of the flat above, and which parts of the Party Wall etc. Act 1996 apply?
Answer
The main provision is likely to be section 6, dealing with adjacent excavation, provided the excavation is within the relevant distance and depth compared with an adjoining owner's building or structure.
Because this is a leasehold building, notices should be considered carefully. The freeholder and the leaseholder of the flat above may both have relevant interests.
1. notice to the freeholder
A notice should usually be served on the freeholder.
The freeholder owns the building structure and the land, including the external walls and foundations affected by underpinning. If the works involve excavation within 3 metres and to a lower depth than the foundations of an adjoining structure, section 6 notice is likely to be required.
2. notice to the leaseholder of the flat above
The upstairs leaseholder may also need to be served, particularly where their flat is supported by the structure being underpinned or their lease gives them a relevant interest in the affected part of the building.
Although the boundary between flats is usually the floor or ceiling, the works may affect the structure supporting the upstairs flat. The safer course is often to serve the upstairs leaseholder where there is any real possibility that their property interest is affected.
3. Which sections apply?
If the rear external wall is not a party wall and the works do not involve cutting into a party structure, section 2 and section 3 may not apply.
Section 6 is the likely route if the works involve excavation close to an adjoining owner's building or structure and lower than the relevant foundations.
The lease should always be checked. In some cases, the structure may be retained by the freeholder, while in others leaseholders may have sufficient interests to be treated as adjoining owners.
4. notice period and information
A section 6 notice must be served at least one month before the excavation begins.
It should include the required plans and sections showing the site and depth of the proposed excavation or foundation.
Conclusion
For underpinning a ground-floor flat, the freeholder should usually be served. The upstairs leaseholder should also be considered, especially where their flat is supported by the structure being underpinned or their leasehold interest is affected.
Where ownership interests are unclear, it is usually safer to serve too widely than to miss a relevant adjoining owner.
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, lease or project. The lease and building layout should always be checked before notices are served.
Learn what notices may be required under the Party Wall Act when underpinning a ground-floor flat, including freeholder and upstairs leaseholder considerations.
Underpinning ground-floor flats: party wall notice requirements | Coburns Party Wall