In today’s Property Surveying blog post topic we are going to be looking at party wall surveying procedures.
In particular, we are going to be looking at the scenarios whereby an appointing owner, under the Party Wall etc. Act 1996 expresses a wish to change their appointed party wall surveyor.
Party wall surveyors are appointed to resolve disputes that exist under the definitions of the Party Wall etc. Act 1996.
A party wall surveyor’s appointment is one of statute, and is effectively governed by Section 10 of the Party Wall etc. Act 1996.
Section 10 of the Act sets out as follows:
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.
The important thing to note about a party wall surveyor’s appointment is that it is one of statutory duty thereby meaning that the surveyor has to act impartially and neutrally without showing any favour or bias to his appointing owner.
We are often asked, how party wall surveyors can act impartially, as the building owner will be paying them, and therefore the misconception is that there will be some form of favour given to the payee.
We can confirm that this is not the case, and at least on paper, a party wall surveyor should be acting impartially, neutrally, while also being governed by the wording of the Party Wall etc. Act 1996.
However, in practice there are always going to be scenarios whereby a party wall surveyor’s impartiality is called into question. There is also likely going to be scenarios whereby for whatever reason the appointing owner wishes to appoint a new, or different party wall surveyor.
As per the wording of the Party Wall etc. Act 1996, in order for this to be applicable, the party wall surveyor who is being asked to step away will have to confirm in writing and from a formal perspective that they are agreeable to do this. As per Section 10 of the Party Wall etc. Act 1996, in doing this the party wall surveyor would be deeming themself incapable of acting.
It is a relatively wide phrase, and in layman’s terms effectively means that they are unable to progress with the appointment for any number of unspecified reasons.
Alternatively, the only other option is the passing of the party wall surveyor. As the Act does not allow for any other scenario whereby a party wall surveyor can be fired, sacked or removed from the job.
It is therefore key that the appointing owner open discussions early with the party wall surveyor if they are indeed unsatisfied or unhappy. From a legal perspective the party wall surveyor does not need to declare themselves incapable of acting, and in many cases there are a great number of party wall surveyors out there who will be uncomfortable, or flat refuse to do this.
The logic being, that if a party wall surveyor deems himself incapable on a particular job, then there is grounds for his fellow professionals and colleagues to request that he or she is also deemed incapable on all other jobs that are of a party wall surveying nature.
The vast majority of appointing owners will find this fact out, usually as the situation moves towards them being unhappy or unsatisfied with their party wall surveyor’s actions or input on the file.
Here at Stokemont, we would therefore advise that you tread carefully when approaching this subject with the party wall surveyor.
The majority will be happy to step aside, thereby facilitating the appointment of a different party wall surveyor.
However, it is worth noting that they are likely to request their fees to date to be reimbursed, therefore it is a discussion for an adjoining owner to have with the building owner, if indeed it is the adjoining owner who wants the party wall surveyor to step aside.
Alternatively, if it is the building owner who is requesting this, they are going to need to bear the party wall surveyor’s reasonable costs and time to date.
In the scenario that the party wall surveyor is acting as an agreed surveyor, then this situation of he or she declaring incapability, is actually a little bit more problematic.
In making the declaration of incapability, they would actually be placing both owners in a position where they need to appoint different party wall surveyors.
This could be particularly difficult, especially if the party wall surveyor has good relations with building owner, or adjoining owner respectively.
Over the years, here at Stokemont, while our surveyors have on very rare occasions declared themselves incapable of acting, it should be worth noting, that this was not a result of owner complaint or issue, but simply to facilitate a smooth turnaround and both time and cost efficiencies for the building owner.
However, in our experience here at Stokemont, it is unlikely that party wall surveyors are going to willingly declare themselves incapable of acting, or entertain the discussions in the first instance.
In many cases a party wall surveyor would have had a similar situation, and should be able to professionally navigate themselves through it, with minimal impact to both building owner and adjoining owner.
That being so, there are no two scenarios that are the same in the surveying industry and as set out within the content of this blog post, if indeed there is a situation whereby a party wall surveyor has been asked to step aside, it is best to have open discussions in a mutual form to best aid the outcome of both the respective appointing owners.
If you would like to discuss your party wall surveying procedures with our team of qualified and experienced party wall surveyors here at Stokemont, please free to give us a call today, we not only offer 30 minutes free no strings professional advice. However, we would also be happy to review any drawings, works, or anything else in respect of the proposed construction work.