Thank you for clicking on today’s Property Surveying blog post topic. Through today’s informative blog post, we are going to be discussing party wall procedures. In particular, we are going to be looking at the dispute resolution procedures that come into place when a third surveyor is called upon to refer and resolve any issue that has arisen.
First and foremost, under the Party Wall etc. Act 1996 and in particular Section 10, if the adjoining owner dissents to the Party Wall Notice and appoints their own party wall surveyor, the first thing that party wall surveyor will do alongside the building owner’s party wall surveyor is to agree a third surveyor.
The agreed third surveyor will not be formally appointed until there is a dispute, therefore at the state of agreement it is nothing more than a selection. The way to look at this is the third point of a tribunal procedure, whereby if the two surveyors do find themselves in a situation where they have a dispute, that dispute being unable to be resolved, then they can ultimately call upon their selected third surveyor to resolve the dispute at hand. At that stage the third surveyor selection would convert into an appointment, whereby he or she would then be on board and duty bound to resolve whatever issue is referred to him or her.
It is also worth noting, that it is not just the building owner’s party wall surveyor and adjoining owner’s party wall surveyor that can raise a dispute and refer the matter to the third surveyor.
Instead, it is also the respective owners, both the building owner, and adjoining owner, who also have that right should they so choose.
Third surveyor referrals are a relatively rare procedure, and certainly on a year to year basis it is usually less than a handful of party wall files that ever need to be referred.
The reality of a party wall surveyor’s role is to resolve any dispute that exists. Therefore, surveyors will work towards this duty and in going so will ensure that they are naturally negotiating and resolving matters that do arise or that are in dispute between them respectively.
Third surveyor selections are a key part of the party wall procedure and generally speaking both party wall surveyors are going to actively select a party wall surveyor and third surveyor who they feel is best equipped for the job and task at hand.
Conventionally, this tends to be experienced party wall surveyors, or party wall surveyors who are known to be neutrally minded and have a sound and reasonable approach to dispute resolution under the Party Wall etc. Act 1996.
There will also be discussion as to ensuring the selection of the third surveyor is one who is not only local, but also reasonably priced, as the last thing that any of the parties will want should there be a dispute is a drawn out third surveyor resolution procedure that could potentially be incredibly costly.
With any third surveyor dispute resolution, it will come with cost risk as well as time risk to the overall resolution of the dispute under the Party Wall etc. Act 1996.
The cost risk will be borne by both the building owner and adjoining owner respectively.
Ultimately, whomever the third surveyor deems to be responsible for his fees, whether that be building owner or adjoining owner, they are ultimately going to have to foot the bill for their third surveyor’s award.
In practice, prior to taking on the dispute and resolving the matter, the third surveyor is going to ask for both the building owner and adjoining owner to place a sum of money on account with them. This sum of money effectively acting as funds on account so that the third surveyor can then progress their resolution and ultimately draft, agree and serve their third surveyor’s award.
The third surveyor’s award will not only confirm which party (the building owner’s surveyor, or adjoining owner’s surveyor) that the third surveyor agrees with. However, it will also set out the party (the building owner, or the adjoining owner) who is ultimately going to be responsible for his fee.
At that stage, the third surveyor is likely to refund one of the respective fees that have been placed on account with him, whether that be refunding it back to the building owner, or adjoining owner.
Putting the cost liability aside, there is also going to be the added time delays that come with a third surveyor referral.
In most cases, the third surveyor once accepting the dispute is going to ask both building owner’s surveyor and adjoining owner’s surveyor, or potentially even the building owner or adjoining owner to present their referral to him.
A third surveyor’s referral will be the respective parties putting together their case, for the third surveyor to then review and take into account as part of their determination and resolution.
Timings are very much going to be at the control of the speed at which the referrals are made however, they will also be affected by the need for the third surveyor to undertake a site inspection (if necessary) or the third surveyor formally determining the matter by way of drafting, agreeing and serving the Party Wall Award that they will ultimately put in place.
In our experience here at Stokemont, we find that the majority of third surveyor referrals tend to be over party wall surveyor fees and costs. While this is not great news for building owner or adjoining owner, it is indeed a relatively firm statistic.
Generally speaking, third surveyors are going to look at the overall works that are taking place to the building owner’s property. The properties themselves. The location and ultimately the amount of reasonable time that an arm’s length party wall surveyor should have spent on the matter.
Third surveyor referrals are definitely one of the more complex and stressful parts of party wall surveying procedures. If you are in a position where you are going to be a party to a third surveyor referral, we would advise careful discussion takes place at the first instance with both building owner’s surveyor and adjoining owner’s surveyor, as well as the third surveyor.
Going the extra mile to aim to avoid dispute and aid resolution can often be the tipping point in third surveyor referrals taking place or not.
In any event a party wall surveyor’s role is one of impartiality, therefore they should be able to provide and present a referral without any basis or emotional input.
If you would like to discuss third surveyor referrals with our team of qualified and experienced RICS building surveyors and experienced party wall surveyors, please feel free to give us a call today and we would be more than happy to assist and advise you.
