156 / 294
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.
i 55