57 & 58 Vict. London before the commencement of the present Act, see the c. ccxiii. Metropolitan Building Acts, by Cunningham Glen, published by Shaw & Sons, Fetter Lane.

s. 89.

Rights of adjoining

owner.

'Party fence wall.'-This expression is defined by sect. 5 (18), ante, p. 21. By such definition a party fence wall to be within the Act cannot be part of a building, and by the definition of the expression 'party wall' such latter wall must form part of a building. The right to pull down a party fence wall can only arise where, when rebuilt as a party wall, the new wall will form part of a building, and will stand to a greater extent than the projection of the footings on lands of different owners. In all other cases, except where it is desired to raise a party fence wall, the building owner is left to his common law rights with regard to the wall and its repair, as to which see the note to section.

The expense of raising a party fence wall for a building is to be borne by the building owner; see sect. 95 (2 e), post ; and the expense of rebuilding a party fence wall as a party wall is also to be borne by such owner; see sect. 95 (2 ƒ), post, p. 187.

89. (1) Where a building owner proposes to exercise any of the foregoing rights with respect to party structures the adjoining owner may by notice require the building owner to build on any such party structure such chimney copings jambs or breasts or flues or such piers or recesses or any other like works as may fairly be required for the convenience of such adjoining owner and may be specified in the notice and it shall be the duty of the building owner to comply with such requisition in all cases where the execution of the required works will not be injurious to the building owner or cause to him unnecessary inconvenience or unnecessary delay in the exercise of his right.

(2) Any difference that arises between a building owner and adjoining owner in respect of the execution of any such works shall be determined in manner in which differences between building owners and adjoining owners are hereinafter directed to be determined.

'Building owner. See sect. 5 (31), ante, p. 34, for the definition of this expression.

'Party structures.'-As to what is a party structure, see sect. 5 (20), ante, p. 21.

Adjoining owner. This expression is defined by sect. 5 (32), ante, p. 34. The adjoining owner is liable for all expenses incurred by the building owner upon his (the adjoining owner's) requisition; see sect. 100, post, p. 189. The requisition must by sect. 90 (5), post, p. 173, be by a notice served within a month after the receipt of notice by the building owner, under subsect. 1

of that section, of his intention to exercise the rights given by the 57 & 58 Vict. statute or some of them in respect of the party structure, which c. ccxiii. latter notice must state the particulars required by that sub- s. 90. section. Upon receipt of the adjoining owner's requisition, and before commencing his work, the building owner may serve the adjoining owner with a counter requisition requiring him to give security for the payment of any costs and expenses for which he may be liable; see sect. 94, post, p. 184.

Notices. These must be in writing (see sect. 187, post, p. 273), and may be served in the manner prescribed by sect. 188, post, p. 274. See also the note to sect. 101, post, p. 190.

Differences. The manner in which differences between building and adjoining owners are to be settled is specified in sect. 91, post, p. 177.

Rules as to exercise of building and rights by

adjoining

90. (1) A building owner shall not except with the consent in writing of the adjoining owner and of the adjoining occupiers or in cases where any wall or party structure is dangerous (in which cases the provisions of Part IX. of this Act shall apply) exercise any of his owners. rights under this Act in respect of any party fence wall unless at least one month or exercise any of his rights under this Act in relation to any party wall or party structure other than a party fence wall unless at least two months before doing so he has served on the adjoining owner a party wall or party structure notice stating the nature and particulars of the proposed work and the time at which the work is proposed to be commenced.

(2) When a building owner in the exercise of any of his rights under this Part of the Act lays open any part of the adjoining land or building he shall at his own expense make and maintain for a proper time a proper hoarding and shoring or temporary construction for protection of the adjoining land or building and the security of the adjoining occupier.

(3) A building owner shall not exercise any right by this Act given to him in such manner or at such time as to cause unnecessary inconvenience to the adjoining owner or to the adjoining occupier.

(4) A party wall or structure notice shall not be available for the exercise of any right unless the work to which the notice relates is begun within six months after the service thereof and is prosecuted with due diligence.

(5) Within one month after receipt of such notice the adjoining owner may serve on the building owner a notice requiring him to build on any such party structure any works to the construction of which he is herein before declared to be entitled.

57 & 58 Vict. c. ccxiii.

s. 90.

(6) The last-mentioned notice shall specify the works required by the adjoining owner for his convenience and shall if necessary be accompanied by explanatory plans and drawings.

(7) If either owner do not within fourteen days after the service on him of any notice express his consent thereto he shall be considered as having dissented therefrom and thereupon a difference shall be deemed to have arisen between the building owner and the adjoining

owner.

Building owner?—This expression is defined by sect. 5 (31), ante, p. 34.

Adjoining owner.'-This means the owner or one of the owners of lands, buildings, storeys, or rooms adjoining those of the building owner. And the expression 'owner' is defined by subsect. 29 of the same section, ante, p. 25. Under the provisions of the Metropolitan Building Act, 1855, which required the building owner to give notice of intention to exercise any of the rights under that Act in respect of a party structure, Chitty, J., held that a tenant for a term of three years of part of a house which was in effect a separate tenement was entitled to notice from the building owner as an adjoining owner. The tenant, in the case referred to, occupied the shop parlour, with a workshop adjoining, the basement and also a back room upon the third floor of a house of which another person, who occupied the front room upon the third floor, was the lessee and in receipt of the rents of the other parts of the house. A notice had been duly served upon such lessee, addressed to him and to whomever it might concern, but no other notice had been served. Fillingham v. Wood (1891), 1 Ch. 51; 65 L.J. Ch. 232 ; 64 L. T. (N.S.) 436; 39 W. R. 252. The present enactment requires the consent of the adjoining occupiers, as well as of the adjoining owner, in order to enable the building owner to dispense with the notice required to be given by the section. As, however, the definition in sect. 5 (29), ante, p. 25, of the expression 'owner' includes in the meaning of such expression every person in possession or receipt of any part of the rents or profits of the adjoining premises, it will always be advisable, notwithstanding the fact that the expression 'adjoining owner' means the owner or 'one of the owners' of the adjoining premises, for the building owner to avail himself of the provisions of sect. 188, post, enabling him to serve notice of his intention to exercise any of the rights in respect of a party structure by delivering the same to some person on the adjoining premises, or, if no person is to be found on such premises, by fixing a copy thereof on some conspicuous part of the building. Such notice should be addressed to the owner of the premises, naming such premises without further name or description; see subsect. 3 of sect. 188, post. It will be noticed that although sect. 90 requires

s. 90.

the consent of the adjoining occupiers to be obtained, as well as 57 & 58 Vict. of the adjoining owner, where no notice under it is given, it c. ccxiii. does not require notice to be given to such adjoining occupiers. The works which the adjoining owner is entitled by subsect. 5 of the present section to require the building owner to execute are those mentioned in sect. 89, ante, p. 172.

'Adjoining occupiers.'-This expression is defined by sect. 5 (32), ante, p. 34, to mean the occupier or one of the occupiers of lands, buildings, storeys, or rooms adjoining those of the building owner; the expression occupier' does not, however, include a lodger; see subsect. 30 of the same section, ante, p. 32. 'Party structure.'—This expression is defined by sect. 5 (20), ante, p. 21.

Rights of building owner. These rights are conferred by sects. 87 and 88, ante, pp. 163 and 167. They are only to be exercised in accordance with the conditions annexed to them by the Act; and a building owner who exercises any of them without fulfilling the conditions upon which it is given to him, loses the protection of the Act, and renders himself liable to an action for trespass; see per Erle, C. J., in Williams v. Golding, L. R. 1 C. P. 69; 35 L. J. C. P. 1; 1 H. & R. 18; 11 Jur. (N.S.) 952; 13 L. T. (N.S.) 291; 14 W. R. 60. The failure to comply with a condition, subject to which any right is conferred upon the building owner, also renders him liable to a penalty under sect. 200 (5), post, p. 286.

Party fence wall. This is defined by sect. 5 (18), ante, p. 21. 'Month.-This means a calendar month; see sect. 3 of the Interpretation Act, 1889 (52 & 53 Vict. c. 63).

Service of notices.-This is provided for by sect. 188, post; see subsect. 3 of that section, which enables notices to be addressed to the owner or occupier of the adjoining premises without further name or description.

It would appear not to be necessary to serve a notice under sect. 90, where it is merely intended to remove a building from an adjoining building, without disturbing the party structure. If, however, the building sought to be removed be so constructed that its supports form part of the party structure which separates the two buildings, notice previous to the removal would, no doubt, be necessary, although it were not the intention of the person removing the building to make use of the party structure in the erection of new buildings. See Major v. Park Lane Company, L. R. 2 Eq. 453; 14 L. T. (N.S.) 543; 30 J. P. 743. It was held under the Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122), that the owner of two tenements separated by a party structure, who had let one of the tenements to a tenant, was entitled to enter on the premises so let by him for the purpose of doing work to the party wall dividing the tenements, without having given any party structure notice. It was argued that though the building owner was in this case the adjoining owner also, yet because he had not given there being no person to whom he could have given a party structure

c. ccxiii.

s. 90.

57 & 58 Vict. notice, he could not be treated as a building owner, and could not therefore enter the premises in the occupation of his tenant without the consent of the tenant. But Crompton, J., in giving his judgment in the Exchequer Chamber, said that the 83rd sect. of the Metropolitan Building Act, 1855, gave a protection to the building owner against the tenant of the adjoining owner in doing the requisite works; and there was, in his opinion, no reason why it should not also protect him against his own tenant. Wheeler v. Gray, 4 C. B. (N.S.) 584; 27 L. J. C. P. 267; 6 W. R. 676 ; 22 J. P. 434 ; S. C. nom. Weal v. Gray, 31 L. T. (o.s.) 166, affirmed in error, 28 L. J. P. 200, 6 C. B. (N.S.) 606, 7 W. R. 325, 23 J. P. 453.

Sect. 82 of the Act corresponds to sect. 83 of the Metropolitan Building Act, 1855 ; but it is to be observed that subsect. (1) of sect. 90 makes the consent of the adjoining occupier necessary, and that no provision is made for the case of a building owner who is also the adjoining owner (as in Wheeler v. Gray) being unable to obtain the consent of the adjoining occupier. Any tenant not a mere lodger would be an adjoining occupier. See sect. 5, subsect. (30), ante, p. 32.

The builder or other person causing or directing work to be done to a building or structure is required by sect. 145, post, to serve a building notice' on the district surveyor. But service of this 'building notice' on the district surveyor is not a condition precedent to the exercise by the building owner of his rights with regard to a party structure. See Wheeler v. Gray, supra.

Protection of adjoining building, &c.-Unless the word 'and' is to be read disjunctively, and as meaning 'or' (as to which The Metropolitan Board of Works v. Stead, 8 Q. B. D. 445; 51 L. J. M. C. 22; 45 L. T. (N.S.) 611, may be referred to), the requirement that the building owner is to make provision for the protection of the adjoining occupier obviously applies only where the adjoining land or building is occupied. It was no doubt enacted in consequence of its having been held that sect. 85 (3) of the Metropolitan Building Act, 1855, which contained an enactment corresponding to that contained in subsect. 3 of sect. 90 of the present Act, imposing the obligation on the building owner not to exercise his rights so as to cause unnecessary inconvenience to the adjoining owner, did not impose any obligation on him to protect by a hoarding or otherwise rooms in the adjoining premises left exposed to the weather during the time a party wall was being pulled down and rebuilt : see Thompson v. Hill, L. R. 5 C. P. 564; 39 L. J. C. P. 264 ; 22 L. T. (N.S.) 820; 18 W. R. 1070. Failure to comply with the condition as to protecting the adjoining premises will render the building owner liable to the penalty imposed by sect. 200 (5), post, p. 286. Provision is made by ss. 121 and 124 of 18 & 19 Vict. c. 120, in Appendix I., post, for the erection of hoardings, &c., for the protection of the public during building operations; and sect. 32 of 53 & 54 Vict. c.