Party wall declarations in deeds

image of some deeds

Recently I had the pleasure of speaking to the Thames Valley branch of the Pyramus and Thisbie Club. During that meeting a question was raised about the meaning and effect of a clause in an old deed that declared a wall to be a party wall.

A party wall declaration is a clause in a deed, usually in the first conveyance of the land, that states that one or more walls are deemed to be party walls. In the case I was asked about the declaration as found in a conveyance dated 14 February 1967, and read:-

“The flank wall and fences of the said property hereby transferred shall be deemed to be party walls and fences maintainable and repairable as such”

The effect of a declaration like this will depend on the context of the clause within the conveyance as a whole. In most cases it will create a type 20(a) party wall; that is, a wall divided vertically into halves, each half being subject to a cross easements in favour of the owner of the other half of user and support.

The extent to which this imposes any obligation to repair the wall also depends on the wording of the clause and its context within the deed as a whole. If it is expressed in positive language then it may be a positive covenant, and therefore only enforceable against the original parties to the deed, and it is not enforceable against any successors in title.

That said, even if the language used is negative it may still be a positive covenant. For example, a covenant that is phrased “not to allow a party wall to fall into disrepair” is in reality a covenant to positively maintain the wall, and may well be unenforceable against successors in title.

Therefore, declarations of this sort are unlikely to alter the statutory position under section 11(4) of the Party Wall Act which requires the building owner and adjoining owner contribute to the cost of repairing a party wall according to the proportions in which they make use of the wall and the responsibility for causing the defect.