Thank you, for clicking on today’s Property Surveying blog post topic. In our weekly blogposts, here at Stokemont we aim to take an in-depth and thorough look at some of the more complicated and tricky parts of surveying.
We understand that surveying can become complicated and confusing for clients and the general public. We aim to address this confusion through these blogposts in a simple-to-understand and easy-to-follow approach.
Party wall surveying is, by far, one of the most complicated parts of surveying that our surveyors here at Stokemont deal with on a daily basis.
With various different legal procedures, responses and multiple different people playing a part in the party wall surveying procedures, it is easy for building owners, or adjoining owners to quickly become confused.
There is never any more confusion than when it comes to a party wall surveyor’s appointment. Under Section 10 of the Party Wall etc 1996, a party wall surveyor will be appointed as follows:
Resolution of disputes
(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either—
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).
(2) All appointments and selections made under this section shall be in writing and shall not be rescinded by either party.
(3) If an agreed surveyor—
(a) refuses to act;
(b) neglects to act for a period of ten days beginning with the day on which either party serves a request on him;
(c )dies before the dispute is settled; or
(d) becomes or deems himself incapable of acting,the proceedings for settling such dispute shall begin de novo.
(4) If either party to the dispute—
(a) refuses to appoint a surveyor under subsection (1)(b), or
(b) neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him,the other party may make the appointment on his behalf.
(5) If, before the dispute is settled, a surveyor appointed under paragraph (b) of subsection
(1) by a party to the dispute dies, or becomes or deems himself incapable of acting, the party who appointed him may appoint another surveyor in his place with the same power and authority.
(6) If a surveyor—
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute; or
(b) appointed under subsection (4) or (5),refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor.
(7) If a surveyor—
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute; or
(b) appointed under subsection (4) or (5),neglects to act effectively for a period of ten days beginning with the day on which either party or the surveyor of the other party serves a request on him, the surveyor of the other party may proceed to act ex parte in respect of the subject matter of the request and anything so done by him shall be as effectual as if he had been an agreed surveyor.
(8) If either surveyor appointed under subsection (1)(b) by a party to the dispute refuses to select a third surveyor under subsection (1) or (9), or neglects to do so for a period of ten days beginning with the day on which the other surveyor serves a request on him—
(a) the appointing officer; or
(b) in cases where the relevant appointing officer or his employer is a party to the dispute, the Secretary of State,may on the application of either surveyor select a third surveyor who shall have the same power and authority as if he had been selected under subsection (1) or subsection (9).
(9) If a third surveyor selected under subsection (1)(b)—
(a) refuses to act;
(b) neglects to act for a period of ten days beginning with the day on which either party or the surveyor appointed by either party serves a request on him; or
(c) dies, or becomes or deems himself incapable of acting, before the dispute is settled,the other two of the three surveyors shall forthwith select another surveyor in his place with the same power and authority.
(10) The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—
(a) which is connected with any work to which this Act relates, and
(b) which is in dispute between the building owner and the adjoining owner.
(11) Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and he shall make the necessary award.
(12) An award may determine—
(a) the right to execute any work;
(b) the time and manner of executing any work; and
(c) any other matter arising out of or incidental to the dispute including the costs of making the award;but any period appointed by the award for executing any work shall not unless otherwise agreed between the building owner and the adjoining owner begin to run until after the expiration of the period prescribed by this Act for service of the notice in respect of which the dispute arises or is deemed to have arisen.
(13) The reasonable costs incurred in—
(a) making or obtaining an award under this section;
(b) reasonable inspections of work to which the award relates; and
(c) any other matter arising out of the dispute, shall be paid by such of the parties as the surveyor or surveyors making the award determine.
(14) Where the surveyors appointed by the parties make an award the surveyors shall serve it forthwith on the parties.
(15) Where an award is made by the third surveyor—
(a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and
(b) if it is served on their appointed surveyors, they shall serve it forthwith on the parties.
(16) The award shall be conclusive and shall not except as provided by this section be questioned in any court.
(17) Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award and the county court may—
(a) rescind the award or modify it in such manner as the court thinks fit; and
(b) make such order as to costs as the court thinks fit.
Section 10 of the Party Wall etc Act 1996 sets out that a party wall surveyor is onboard in order to resolve the dispute at hand between both the building owner and adjoining owner.
It is worth noting that the word dispute is essentially just meeting the legal requirements as set out by the statute. We recognise, that there is very rarely a dispute as such, however the Act is nonetheless specific on the wording and therefore from a legal perspective, if there is a Party Wall Notice dissent, it would be referred to as a dispute.
This is not a dispute in the normal context, such as a boundary dispute, or other form of neighbourly dispute. It is simply a dispute under the wording of the Party Wall etc Act 1996.
Once a party wall surveyor has been appointed on behalf of the building owner or the adjoining owner, that party wall surveyor will then enter a statutory duty to ensure that the dispute at hand is resolved without issue and delay. The party wall surveyor will be duty-bound to fulfil that role and ultimately conclude it by the agreement of a Party Wall Award.
A Party Wall Award will be required to govern and regulate the proposed works that the building owner is undertaking for their property.
In effect, the agreement of the Award itself acts as the resolution of the dispute that the Act sets out.
One of the most common questions that we find ourselves being asked on a daily basis here at Stokemont, usually by callers who want to engage our services, is whether a party wall surveyor can be changed, removed, fired, or sacked.
It is not an uncommon consideration, as in almost all other circumstances, whereby a professional is acting on behalf of a client, if there is some form of issue, the client has the opportunity to remove the professional from the job and engage other services that would better be suited to their needs.
However, as set out within this blogpost, a party wall surveyor’s role is one of statute and duty. This effectively means that they are not acting on behalf of the building owner or adjoining owner, they are instead administering the Party Wall etc Act 1996 and are very much governed by its wording.
The best way we can describe this here at Stokemont, is that the party wall surveyor acts on behalf of the properties, as opposed to acting on behalf of the respective owners.
This means that they will not be able to act in a manner that is favourable to their client (whether this is building owner or adjoining owner), if indeed acting in that manner would be against the wording of the Act and intention of the statute.
There are various scenarios where owners (building owner or adjoining owner), can find this approach to be daunting and unfavourable.
A good example of this would be party wall access.
Party wall access is governed by Section 8 of the Party Wall etc Act 1996
Unbeknown to a lot of adjoining owners, a building owner will have the legal right of access onto an adjoining owner’s land, providing that they serve the necessary Section 8 Notice upon them.
While also taking into account that their proposed works that fall within the realm of the Party Wall etc Act 1996, must have works that genuinely require access onto the neighbouring land.
Assuming this is the case, a building owner and their contractors/workmen will have the legal right to enter onto an adjoining owner’s land in order to safely construct, finish and complete their proposed works.
As I am sure you can imagine, adjoining owners can take great issue with this, and if you look at this from a general perspective quite rightly so.
The only other Act that enables one owner to have access onto another owner’s land is the Access to Neighbouring Land Act.
However, this Act deals very much with repair and maintenance, as opposed to new development and new construction work.
The Party Wall etc Act’s take on this is that in order to construct and build their proposals safely, the building owner’s contractors are going to need to have some form of controlled access onto the neighbouring owner’s land.
This access will be closely governed and set out by a Party Wall Award, however that may still not be a suitable remedy for adjoining owners.
In some areas such as this, or any other for that matter, an adjoining owner may want to change party wall surveyor as they are not happy with the overall outcome of the party wall surveyor’s position.
Can I Change Party Wall Surveyor?
Unfortunately, under the Party Wall etc Act 1996, once a surveyor has been appointed under the statute, they cannot be changed, removed or fired until the Party Wall Award is agreed.
The only other way that a party wall surveyor would stop acting, is if he or she were to declare themselves incapable of acting and effectively step aside as per the requirements of the Act.
While this can occur, in our experience here at Stokemont, it is a relatively rare position for party wall surveyors to take.
In the past we have seen a suggestion and claim that if a party wall surveyor declares themselves incapable of acting on one job, then there are grounds for that surveyor to be incapable of acting on all party wall jobs.
In practice, if there is a fall-out or disagreement between the building owner, or adjoining owner and the party wall surveyor, we would very much advise trying to work through it, in order to ensure that there is a good channel of communication in place in that regard.
Overall, the party wall surveyor will want to ensure that the owner’s interests are best protected, and therefore it is advisable that there are open channels of communication in that regard.
The ultimate outcome of this blogpost, is that a party wall surveyor once appointed, cannot be removed from the party wall job, unless indeed he or she agrees for that to be the case.
Party wall surveying procedures are an incredibly complicated part of the surveying that we undertake at Stokemont. We are very proud to offer a 30-minute free no-strings party wall advice line, that we offer to all of our clients and the general public.
If you would like to speak with one of our experienced and qualified party wall surveyors today, give us a call and we would be more than happy to assist and advise you.