The Gazette 1972

provide Tor mutually shared repairing obligations seems ineffective. Examination of Section 38, Law of Property Act, 1925 (on which reliance was placed hy the editor of the Encyclopaedia) shows that the section creates mutual cross-easements of support; interference with an easement is a tort, of course, so the withdrawal by one co-owner of support of the other's half is actionable. Withdrawal, however, connotes a positive act, and allowing one half of a party structure to fall down is not such an act—see Sacks v Jones ([1925] Gh 235); the tort remedy punishes malfeasance not non-feasance. It follows that to maintain and repair a party wall "accordingly" is to measure a duty by reference to a standard which involves no repairing obligation. Mr. Powell-Smith in his Law of Boundaries and Fences asserts (at p. 120) that a clause for a party wall to be "repaired and maintained as such" implies mutual covenants to repair, again relying on Section 38 but again, it is submitted, erroneously. The writer has always preferred the formula that such-and-such struc- tures shall be "party structures repaired and maintained at the equally shared expense of the respective party owners". This, it is suggested, imposes a positive obli- gation to repair which the earlier formula does not. "Respective" party-owners caters for the situation whereby, in respect of house 2 in the example used in this article, the owners of houses 1 and 2 share respon- sibility for wall a-b, those of 2 and 3 for c-e and f-d, those of 5 and 2 for b-o and those of 2 and 6 for o-d. Each owner can recover half of his costs of repair from the relevant co-owner, and has an obligation to contri- bute half appropriately; either can thus take the initia- tive in securing repair, another positive advantage over the sole ownership approach. Insurance companies meeting claims for repair of damaged boundary struc-

tures also seem to welcome a party structure basis— and indeed no-one would seemingly question that the internal wall e-f between houses 2 and 3 was in all respects truly a party structure as are the dividing walls between houses 6 and 7 and between 7 and 8. The clause suggested in this article was used, for the reasons given, in Modern Conveyancing Precedents (ed. by Par- ker) and variants to the same effect appeared much earlier in Key and Elphinstone and then in Hallet. Hallet does not accept the Halsall v Brizzcll argument already cited in respect of party walls, suggesting that the "burden of the obligation to repair cannot he made in any simple way to run with the land" (p. 212) although he remarks elsewhere that "the extent and validity of this doctrine (i.e. Halsall v Brizzell) is not yet clear" (p. 360). There should he added one note of caution and dis- claimer. The writer has not dared herein to wrestle with the London Building Acts and all he says herein should he read subject to that legislation where it applies. Perhaps if there is a swing to the party-wall solution, the time will come to consider that code as at least a basis for a national code, hut that possibility still seems somewhat distant. Property damage between contract and completion The following special condition is tentatively suggested : "The property is from the date hereof at the risk of the purchaser as regards all risks comprised in a normal householder's comprehensive policy." The weakness in this, especially now that the use of stan- dard policy conditions have gone with the abolition of the tariff, is what is meant by "normal" and by "com- prehensive". The discovery of some less uncertain but not too cumbersome phrase would be most welcome.

Landlord and Tenant (Amendment) Act 1971 1 his Act which contains important provisions relating to the law of landlord and tenant and affects the solici- tors' profession particularly is not yet on sale. The Society were informed hy letter from the Department of Justice dated May 3rd that the Act in bilingual form Would be on sale through the usual channels within the following two months. This is obviously an unsatis- factory position and enquiries are being made from the Department as to the reason for the delay. Enquiries are also being made as to whether the text of the Bill as passed by both Houses can he obtained from the Government Publications Sales Office.

The Solicitors' Benevolent Association

The Association, which operates throughout t he whole of Ireland, cares for Solicitors, their wives, widows and families, who have fallen on hard times. Last year over £4,300 was distributed in relief. Additional subscriptions, donations and bequests are urgently needed to continue and extend the Association's work. The active co-operation of the profession in the Association's good work is asked for, and all who are not members are urged to join without delay. Membership subscription £2.10 (or £2.05 if admitted less than 3 years) a year. £15.75 life membership. Address: SECRETARY, Solicitors' Benevolent Association, 9 Upper Mount Street, Dublin 2.

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