I recently came across the same issue in relation to a couple of contracts that I was advising on. The issue was that there were party walls on the property but no cross-easements for support registered on title. Now as dry as this topic sounds, it is important issue to keep in mind, especially when buying older terrace properties.
A party wall is a dividing structure that is shared between two properties. Each lot owns half of party wall. Where
there is a party wall, there should be cross-easements for support for each
respective lot owner, to ensure that each owner’s share of the wall is to be
supported by the other owner’s share of the wall. These cross-easements are
usually registered on title.
Where a property does not have a cross-easement, it means that the property owner does not have the benefit of requiring that the adjoining owner’s
wall support their wall. In our experience, the lack of a cross-easement has not
been a major issue as practically speaking, the adjoining owner is unlikely to
risk removing their share of the wall. In addition, there may be an action in
negligence if the adjoining owner’s work to their share of the wall damaged
your property.
You should keep in mind that sometimes the non-existence of a cross-easement can create a barrier to
reselling the property, depending on the concerns of the potential purchaser. So you need to factor this in when you are considering purchasing such a property.
There are legislative provisions which allow for the automatic
creation of a cross-easement if the term “party walls” are used on a transfer
or other conveyancing document. However to search the historical records for such a transfer, can take considerable time and could cost a few hundred dollars to perform and the worst thing is that there is no guarantee that it exists.
It is always possible to reach an agreement with your neighbour about registering a cross-easement but this will involve significant cost for surveys and drafting.
