Getting to grips with the difficult issue of security for expenses under the Party Wall etc. Act 1996

Abstract

The topic of security for expenses is a matter that the author is increasingly having to address under referral as third surveyor. This paper briefly examines the roots of the security for expenses provision, noting how the provision has evolved since first introduction within the Metropolitan Building Act 1855 where the provision was less commonly applied; then making its way through the various Acts with subtle but meaningful changes that have resulted in much more common and (in the author’s view) over-use of the provision within the current Party Wall etc. Act 1996 (the Act). The paper highlights the lack of parliamentary guidance provided to support the use of the provision, which the paper suggests will have flowed from the limited parliamentary time that was allowed back in 1996 for the hearing of the Bill, which, in the event, caused the Bill to be rushed through Parliament with some rough edges, to say the least. The paper finds that added to the lack of legislative guidance within the current Act is a gulf that is yet to be filled by the usual (but in this case lacking) onslaught of case law that tends to address the unanswered questions posed by parliamentary legislation. The article casts light upon some of the more contentious aspects of the provisions, unpacking those aspects and providing some practical ‘how to’ guidance to practitioners who have to deal with the matter on a regular basis.