Robbins: Partywall agreements
In 1971, the British songwriters Roger Cook and Roger Greenaway released the song, “I’d Like to Teach the World to Sing (In Perfect Harmony).” Rather than in its original, if you are of a certain age, you probably remember it as it was rewritten by U.S. advertising folks to become “I’d Like to Buy the World a Coke” sung by the Hillside Singers.
The crass commercialism notwithstanding, the lyrics are inspiring. In part, it goes like this;
“I’d like to see the world for once
All standing hand in hand
And hear them echo through the hills
For peace through out the land”
Perhaps the lyricists were idealizing partywall agreements.
Or maybe not.
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In the same way as good fences make good neighbors, good party walls make good duplex-mates.
First, let me observe that you can’t legislate away someone being possessed of a foul and disagreeable temperament. If one bound to a partywall agreement wants to be disagreeable and impose his foul moods upon his neighbor, then no matter how masterfully the party wall agreement may be drafted, no matter how unambiguous its terms, if you’re the other guy, you may be in for trouble.
What, then, is a partywall and what is a partywall agreement?
A partywall may be defined as a wall (or sometimes, another form of division) erected on a property boundary as a common support to structures on both sides, which are under different ownership. Imagine a typical duplex. There’s a duplex unit on the right and a duplex unit on the left. While each is separate, connecting the two like an umbilicus is a shared or common wall, the wall which, if you bang on it, your neighbor will complain. That shared wall is the partywall. It is a wall built partly on the land of one owner and partly on the land of the other for the common benefit of both in supporting the construction of the contiguous buildings. This, of course, creates some potential complications.
If you both own the wall, then neither of you may affect it unilaterally, that is without the consent and cooperation of your partywall neighbor. Say the plumbing running through that wall bursts in a cold snap. The parties must agree how, when, with whom, and at what cost the damage should be repaired. What if one of the duplex owners refuses? How can the other owner obtain access to the plumbing, which is only half his and how can he compel the other owner to pay his fair share?
This is where the party wall agreement comes to the rescue. A partywall agreement spells out the responsibilities of each owner as to how decisions are made between them, how impasses are resolved, how repair and maintenance costs are shared, and often includes matters of aesthetics (for example, spelling what colors the exterior may be painted).
Party wall agreements also lay out under what circumstances one party has access to the other unit (generally, in the case of essential repairs), what insurance must be carried and by whom, how one party may enforce liabilities for payment of real estate taxes by the other, how one party collects payment from the other for expenses that are unpaid and due, and describing easements and/or permissive uses (for example, if a common driveway is on one owner’s property, giving the other property owner the right to cross it to his property).
When a new duplex unit is constructed, the builder generally creates the partywall agreement. When the buyer’s buy, they step into the shoes of the builder and have the same rights, same burdens as originally imposed under the agreement. These rights and burdens “run with the land,” in other words, they are “attached” to the realty regardless of who the owners of the moment are.
If the owners agree that a particular provision of the agreement isn’t working for them, they may agree to change it and memorialize it in a written amendment recorded in the real property records for the county. If they cannot agree, a good partywall agreement will anticipate that and provide a mechanism to resolve the dispute.
While a tight partywall agreement most often nips disagreements before they become wars and lays out in clear and concise language as to what each party’s rights, responsibilities and recourse are, when a jerk is still a jerk and will not be prevailed upon by the terms of agreement, sometimes the only resort is to the court to untangle the Hatfield and McCoy dispute. As you might imagine, disputes with your conjoined neighbor can often be sour, vindictive and generally unpleasant. It’s difficult to have nothing to do with the so-and-so when she/he shares a wall, driveway, and yard with you.
I’d like to teach the world to sing in perfect harmony? Yeah, a good partywall may help that.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,” was published in November.
