Canadian Contractor

By Christopher Smith   

Party walls are not such a party anymore

Canadian Contractor editor pick

The deal with maintaining party walls and obtaining consent

With the growing density requirements of today’s home construction, attached and semidetached homes are becoming a significant part of the market. Toronto already has a large stockpile of these homes, but surprisingly we don’t have the proper framework to renovate them.

I have worked on many semi-detached homes over the years, and it baffles me why we don’t have some sort of policy to deal with party-wall construction. Our current system relies upon consent in the form of a party wall agreement from the adjoining neighbours to do any permitted work on the party wall itself.

A party-wall agreement is a document intended to stipulate terms of construction and remediation if any damages occur. The problem is that now it is being weaponized to hold up construction or stop projects altogether, as there is no legal recourse if the adjoining neighbours refuses to sign one.

The result is a huge mess, as one would expect because when playing by the rules can be thwarted by the simple refusal to sign, there’s a problem. We, as contractors, need better policies that help secure the development of these types of properties without relying on the consent of the neighbouring parties. We need a new framework similar to the ones used in other countries like the UK, where conjoined housing is also popular. Prioritizing the maintenance of party-walls in any new developments while also protecting the rights of both sides would aid in future development of party wall homes.

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Why does consent not work when it comes to party-walls?

To give a bit of background on where all of this is coming from, I would be remiss if I didn’t share my own story. I work a lot in the east end of Toronto, which is a place with a tremendous number of semidetached homes.

Until COVID, I had never experienced anything like this as all of my projects that dealt with party-walls always had party wall agreements and, in most cases, it was the neighbouring property that insisted upon it.

Today it seems to be a different world, however, in that there is a level of hostility towards the development of any home, especially semidetached ones, that I have never seen before.

Whatever the root causes, the result is a level of irrational behaviour that is baffling to me to say the least. The two projects I have been involved with both wanted third floors to expand their homes to fit their growing family. In both cases, the adjoining neighbours was completely opposed.

So, we went to C of A with an opposition for what would be considered a small addition in any other situation. We won in both cases, which would have been the end of things in the past, but not so much today. When it came time to sign a party wall agreement, we learned the horrible truth, you have no legal recourse to compel adjoining neighbours to consent to fully permitted work on the shared party wall. This seemed crazy, but it was confirmed repeatedly after my discussions with various lawyers.

This meant that the disapproval of neighbours forced the issue in a direction that benefits neither party. In these instances, it meant revising the proposal to build the third-floor additions at the property line, which is often done in cases where an impasse on party walls can’t be overcome.

The problem with it, though, is that it has huge implications down the line for both sides especially when it comes to a third-floor structure. This would be completely unnecessary if with just had some sort of laws in place to make sure party-walls stay party walls and work on them doesn’t require the consent of anyone other than the city itself, just like any other permitted work.

Limitations of building to the property line

So, what’s the big deal with maintaining party-walls or obtaining consent when you can simply build to the property line?

At first glance, it appears to be a practical alternative to bypassing the complexities of party-wall disputes. However, the issue with this approach is that it only works effectively once and can create significant challenges in the long run for both property owners.

Building to the property line may initially seem like a viable solution for one side, but it becomes problematic when the neighbouring property owner also wants to build to the property line. This approach leads to a host of limitations and constraints on future development possibilities for both properties. When both parties attempt to build up to the property line, they inadvertently create a new party-wall, albeit one that exists only in theory.

This theoretical party-wall cannot function as a traditional party-wall because each structure relies on its own foundations, resulting in a lack of structural interdependence. Furthermore, building to the property line can lead to potential issues with building codes and zoning regulations, as well as increased costs associated with constructing separate walls and additional insulation for sound and thermal protection.

The separate walls might also result in a less visually appealing streetscape due to the lack of uniformity and continuity. Additionally, the lack of a shared party-wall can hinder future maintenance, repair, and renovation efforts for both property owners. Without a shared wall, it becomes more challenging to access and address any structural or cosmetic issues that may arise over time. This can result in increased costs and complications for both parties, ultimately defeating the purpose of building to the property line in the first place.

While building to the property line might seem like a practical alternative to dealing with party-wall disputes, it is a shortsighted practice that can lead to numerous challenges and limitations for both neighbouring property owners in the long run. Instead of resorting to this approach, adopting a comprehensive legal framework for managing party-wall disputes would be a more effective and sustainable solution for all parties involved.

What works elsewhere and how best to apply

Several countries have implemented legal frameworks to address party-wall disputes. For instance, in the UK, the Party Wall Act 1996 provides a clear legal framework for resolving disputes between neighbours over party-walls, boundary walls, and excavations near neighbouring buildings.

The Act establishes a process that enables both parties to agree on the work to be carried out or appoint a surveyor to resolve disputes. This approach helps to maintain party-walls and protect the rights of both parties without requiring explicit consent.

In other countries like France, Spain, and Germany, legal frameworks or civil codes deal with shared walls, property boundaries, and construction, offering mechanisms for resolving disputes without relying on one party’s consent. These frameworks typically involve negotiation, mediation, or arbitration before resorting to litigation. Such mechanisms can be less time-consuming, less expensive, and less adversarial than going to court, which is currently not an option.

Toronto and Canada, more broadly, could benefit from adopting a similar legal framework to manage party-wall disputes. This would involve creating legislation or regulations specifically addressing these disputes and providing clear guidelines for resolving such conflicts. A well-designed legal framework would balance the rights and interests of both parties and establish a fair process for resolving disputes without relying solely on the consent of one party. By looking at what has worked as successful legal frameworks in other countries, Canada could develop a more effective and efficient system for managing party wall disputes, thus ensuring that future development of party-wall homes can proceed based on the merits of approval by the governing bodies in charge of giving such approval.

Ultimately, addressing the issue of party-wall disputes in Toronto would help to fostering a constructive environment for development and ensuring that the city continues to grow and thrive.

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Christopher Smith is the owner and founder of Woodsmith Construction Inc, a design and build renovation company that has specialized in working with older homes in the east end of Toronto since 2001. His passion for everything to do with older homes was rooted in his early childhood experiences working on Victorian homes in Cabbagetown with his architect/builder father. He is a Red Seal Carpenter and a BCIN registered designer. Woodsmith Construction has completed a wide range of projects, including full-home renovations, additions, and restorations. 

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