Recognizing a Party Wall Agreement in British Columbia

Basics of a Party Wall Agreement

Party wall agreements are legally binding contracts between two or more property owners who share a boundary, often a wall, fence, floor, or another structure. These agreements outline the rights, responsibilities, and obligations of each party for maintaining the adjoining structure, ensuring that both parties are on the same page regarding maintenance, repairs, and alterations to the shared property. The purpose of a party wall agreement is to prevent disputes between neighboring property owners regarding the use and maintenance of the party wall structures, which may otherwise lead to costly litigation.
In British Columbia, these agreements are nipped by provincial legislation, specifically the Party Wall Act, R.S.B.C. 1996, c. 347 . This legislation regulates the relationships between two or more owners of land adjoining a common boundary, as well as their successors in title, concerning the rights and obligations arising with regard to the co-owned land. The Act covers a variety of issues, such as the right of access onto an adjacent landowner’s property, the right to make alterations and improvements to the common boundary land, and the right to compensation. право на компенсацию
Having a party wall agreement in place helps ensure that neighbors have a clear understanding of their property lines and agree on how to handle any future repairs or renovations. Such agreements can help avoid disputes and legal action, which can be costly and time-consuming for all involved parties.

Party Wall Agreements in British Columbia

Understanding Party Wall Agreements in British Columbia
Whether it’s a simple fence erecting on the boundary of two properties or the construction of a multi-storey complex, building or repairing a structure adjacent to another property inevitably has the potential of infringing on a neighbouring landowner’s use and enjoyment of their property. For this reason, legislated rights exist in B.C. to address the rights of parties to construct, reconstruct and repair structures on or over property.
Common law Doctrines
Traditionally, common law doctrines governed party wall arrangements in B.C. These doctrines collectively referred to as the "Common Law Doctrines" are now largely overridden by B.C. statutes that regulate party wall agreements. The Common Law Doctrines include: Given their continued application, it is still important to understand how the Common Law Doctrines can override any statutes governing a party wall agreement.
Laws Relating to Party Wall Agreements
The laws of British Columbia related to party wall agreements are found primarily in the Offence Act (the "OA"), the Land Title Act (the "LTA"), the Strata Property Act (as of January 1, 2002), the Building Act (as of July 1, 2015) and the Vancouver Charter. The OHSA requires Owners (and those in charge of a workplace) to ensure that any dangers are minimized in a manner that ensures health and safety at the workplace. This includes hazards to neighbours of properties with common walls and those who work on and about the common walls. The LTA governs aspects of neighbouring property ownership and includes certain requirements if either property is subdivided and the walls belong to both parties. The Building Act contains provisions related to building construction, including party walls. The Vancouver Charter has provisions similar to the Building Act and includes requirements for municipal action with respect to certain violations of party wall arrangements. The most significant statutory enactment referring to party wall agreements is found in the Land Title Act (the "LTA"). The LTA governs aspects of neighbouring property ownership, including matters pertaining to neighbouring properties that are not subdivided. Shortly, we’ll review the history of the LTA, including relevant provisions and amendments. Like the LTA, the Strata Property Act addresses party wall agreements. The Strata Property Act governs motivating factors that give rise to an owners corporation (formerly stratas) and neighbourhoods that are governed by one. The Vancouver Charter governs similar enactments. In addition to the above, the Vancouver Building By-law (the "VBB") and the Vancouver City By-law address party wall agreements. The VBB sets forth, among other matters, the requirements for the building of retaining walls, foundation walls and other superstructures. The Vancouver City By-law addresses matters related to the occupancy of buildings.

When is a Party Wall Agreement Required?

In most cases, you will require a Party Wall Agreement when you are acting as the developer or owner of property adjacent to another property that has a wall built on the property line or is very close to the property boundary. In these situations, you need to know how your construction will impact the adjacent property and vice versa. A Party Wall Agreement becomes necessary when you are completing renovations or any kind of building not just on your property, but also close to or on the adjacent property line itself. For instance, if you want to build a raised deck that overlaps over the property line because it has been built on uneven ground, the Party Wall Agreement will outline how the finish work of the deck will be completed in accordance with a shared wall maintenance. Similarly, if you have a property boundary that is not straight and there is a wall that needs to be repaired or replaced, a Party Wall Agreement would be required to identify who is responsible for the upkeep of the boundary wall and how the replacement should happen. The important distinction is that the Party Wall Agreement is required when the work is necessary because the subject wall itself is on the property line; and it is not created for the purpose of renovation or new development. If you are simply tearing down the entire wall to build a new wall or fence without recriminations, then the Party Wall Agreement may not be required.

Content of a Party Wall Agreement

A party wall agreement should clearly identify the party wall, and detail the obligations with respect to the party wall of both property owners. These obligations generally pertain to the right to use the party wall, the cost of maintaining that party wall, the right to make alterations to the party wall, how the party wall is to be repaired, and what happens if a dispute arises.
The party wall must be identified with sufficient particularity to ensure that there can be no error as to which wall is the party wall. Sometimes it is difficult to properly identify which wall is the party wall, and in those circumstances it is unclear whether a party wall really exists. If a disagreement between two neighbours erupted into a legal battle, no doubt the question of whether the wall claimed to be a party wall is a party wall would be one of the issues.
The party wall agreement must also identify what obligations each owner has, and that all parties to the agreement are bound by those obligations. For instance, the agreement should specify that the property owners shall keep the party wall in a state of good repair, and that the party wall shall not be altered or removed without the consent of all property owners. Further, if parties agree to share the cost of maintaining the party wall, the agreement should specify the manner in which such costs are to be shared and paid.
While it is essential for a party wall agreement to identify what a party wall is and how obligations are to be allocated, it is equally essential to identify and allocate obligations when it comes to alterations or improvements of any kind. Even those alterations that do not directly deal with the party wall but may affect the party wall should be addressed in a party wall agreement.
Any alteration to the party wall must be done in accordance with the provisions of the party wall agreement. Under no circumstances should a party be permitted to demolish or remove a party wall. Importantly, all parties to a party wall agreement must have the right to inspect the party wall to ensure the wall is being properly maintained.

Preparing a Party Wall Agreement

The drafting of party wall agreements follows several steps: First, the property owners must talk to their neighbours after deciding that they want to undertake work that requires the drafting of an agreement. It is important to communicate adequately with the neighbour so as to prepare them for the work that is going to be done and get their views. Second, the parties must decide on an expert surveyor to prepare the agreement. Most of the relevant statutes provide for the appointment of a surveyor on a party wall dispute. The parties can agree to appoint the same surveyor. However, if the neighbours do not agree, then each of them can appoint their own surveyor. When a surveyor is appointed, he or she will need to visit the site and prepare a written assessment of the boundary structures. This assessment must also contain details regarding the work to be carried out and the condition of the building or structure . This assessment is particularly useful in proving if any damage has been caused during the work. The parties also require access to the land of the adjoining neighbour so that the surveyor can inspect the land and prepare the agreement. The surveyor will advise the neighbour regarding the work and what facilities are required to carry such work. Upon agreement regarding the work to be done, the parties must prepare a plan showing the walls, floors and other structures which would be affected by the proposed work. This plan should adhere to the surveyor’s assessment report. A party wall agreement must also include the rights and liabilities of the parties with regards to: Finally, the parties must ensure that any legal and financial issues are dealt with. There may be issues such as an insurances claim, mortgage or easement. The surveyor may ask for a written agreement dealing with those issues.

Facilitating Disputes and Complications

Even in the best of circumstances, disputes may arise between property owners performing work on their own buildings. Fortunately, the Property Law Act provides a line of authority to be followed in cases where it becomes necessary to carry out construction of the party wall by the complainant property owner. The line of authority is as follows:
The time within which a party wall is to be built or repaired will usually be stipulated in the agreement itself. Sometimes, the agreement will provide for an appeal of one of the conditions of the award by the master. The appeal is a statutory right providing for the appointment of a judge to decide whether the order of the master was a correct order.
In the absence of any covenant or special provision stating otherwise, the decision of the arbitrator stands and the only way to set it aside is a decision of the court. In British Columbia, the statutory authority for applications based on an alleged improper award is found in section 14 of the Arbitration Act. This section provides: 14 (1) Neither the award nor a submission is subject to appeal under any law except by leave of a judge given on special grounds. (2) Full right of appeal exists on the question of the jurisdiction of the arbitrators where the matter in dispute is in excess or in variance of the submission.
In case an appeal may become necessary, it is wise to avoid attending at any further proceedings set by the arbitrator which may create a liability for costs. To exercise the right of appeal, the aggrieved party must apply to a judge of the Supreme Court within two months from the date when the award has been made. The judge has the right to set aside the award on various grounds which may include the consideration that the request of the other party was factually and legally improper or that the award was not made within the prescribed period. The judge will provide a fresh time limit for the completion of the arbitration.

Gains of a Party Wall Agreement

The benefits of having a properly drafted party wall agreement include protection afforded by the agreement should any dispute regarding the party wall evolve. Further, by clearly identifying the rights and responsibilities of the party wall owner and the adjoining land owner in respect of the party wall, a party wall agreement establishes the expectation of each land owner as to the use and development of the party wall.
Further, the risks of damage to the party wall are mitigated and the process involved in repairing a damaged wall is accelerated with a party wall agreement as it is clear from the agreement which adjoining land owner is responsible for the repair and replacement.
An example of a party wall agreement that may be used when building dividing walls can be found in the British Columbia Interpretation Act, RSBC 1996, c 238.
Also noteworthy is that honoring the terms of an existing party wall agreement provides the parties with certainty as to their rights and obligations as well as preserving good neighborly relations.

Conclusion and Tips

The parties whose properties are affected by the party wall or fence line issues each have rights and obligations under the Act. It is important that owners, contractors and others involved with adjacent properties understand how these rights and obligations apply to their specific circumstances.
There are a number of other best practices that are useful to consider. These include: An important concept in the Party Wall Act is that party walls and fences are not the same as boundary fences. Regardless of which party actually constructs the wall or fence , an owner does not have an unfettered right to build or remove structures that affect the common wall or fence line. These rights and obligations apply equally to property owners, contractors, suppliers and others who may enter onto an owner’s land. The concept of "common wall" versus "common fence line" applies to both types of structures.
Owners and contractors should always keep these concepts in mind when dealing with issues that relate to party walls and fences under the Party Wall Act, even if a particular issue is not covered by the Act or if the Act is the subject of ongoing reform.