In my last post I discussed the effect of an express declaration in a deed that a wall was a party wall. But what is the position where there is no such declaration?
The Courts have considered this issue in two cases: Wiltshire v Sidford and Cubitt v Porter.
Essentially, where the circumstances in which the wall was built are unclear the law presumes that the wall belongs to both of the adjoining owners as tenants-in-common.
This presumption is based on the common use and enjoyment of the wall, which is strong (but not conclusive) evidence that the wall and the land on which it stands belonged equally to both owners as tenants-in-common.
Further, where houses are constructed by the same person, and then sold off individually (e.g. in a terrace) in the absence of a contrary clause the law will imply that the transfer will include a share, as tenants-in-common, of the party wall. This creates a tenancy in common of the wall.
However, both of those cases were decided before the Law of Property Act 1925 (“the LPA”) came into force. Under section 38(1) of the LPA a party wall that prior to 1925 was held as tenants-in-common (as above) is now divided in equal vertical portions with reciprocal easements of user and support one over the other. In short, this means that they became type 20(a) party walls.
This means that, in the case of a wall separating two houses the law presumes (in the absence of contrary evidence) that the boundary line runs through the middle of the wall and that each party own half of the wall subject to easements of user and support in favour of the other adjoining owner.