Here at Stokemont, party wall surveying is one of the most prevalent services that we offer. On any typical day, we have likely served handfuls of Party Wall Notices, undertaken numerous Schedule of Condition inspections and prepared reports and agreed Party Wall Awards.
We like to consider ourselves experts in the party wall surveying profession and are very proud to have assisted multi-national companies, private companies and local authorities alike.
What is Ex Parte Service?
Ex parte Party Wall Award service will come into play when one of the two party wall surveyors is unwilling to engage in conventional discussion.
That conventional discussion leading up to the agreement of the Party Wall Award and its service.
The Party Wall etc. Act 1996 has indeed taken this scenario into account, with a procedure and protocol being drafted into its wording to ensure that such scenario does not result in a dead end or stalemate.
Under Section 10(6) and (7) of the Party Wall etc. Act 1996 sets out as follows:
(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.
This protocol is very transparent and clear, whereby if a building owner’s surveyor wants to get a Party Wall Award agreed with their counterpart the adjoining owner, all they will need to do is inform the neighbouring party wall surveyor, the adjoining owner’s party wall surveyor, of the need to engage as per the necessary sections of the Act.
Once this action has been taken, the adjoining owner’s party wall surveyor will then be duty bound to engage with the building owner’s party wall surveyor in an effort to agree the Party Wall Award and regularise the procedures.
It should be worth noting that in all normal circumstances ex parte Party Wall Award service is going to be a final option, in many cases the building owner’s party wall surveyor will want to avoid this.
Should the scenario whereby an adjoining owner’s party wall surveyor being unresponsive comes into play, there are also a couple of other options available to the building owner and building owner’s party wall surveyor.
Third Surveyor Engagement
Another reasonable option that the building owner’s party wall surveyor can take, is to engage the third party wall surveyor.
Once the third party wall surveyor has been engaged, they will effectively step in and agree the Party Wall Award in place of the unresponsive adjoining owner’s party wall surveyor. Unfortunately for the building owner this will ultimately mean that they are going to be liable for the third surveyor’s professional fees in agreeing the Party Wall Award however, the involvement of the third surveyor will ultimately mean that the Party Wall Award served is given more credence.
This credence therefore eliminating or removing any potential claim from the adjoining owner, or adjoining owner’s party wall surveyor, that indeed the ex parte award has been agreed improperly and is legally invalid.
Is it common?
Ex parte Party Wall Award service is a rare scenario for party wall surveyors to find themselves in, in many cases building owner’s and adjoining owner’s party wall surveyor will want to work to ensure that the procedures are dealt with smoothly and free from any onerous legal action such as this.
However, unbeknown at the time, there are often many scenarios that can come into play where quite simply a building owner’s surveyor is unable to actively engage with an adjoining owner’s surveyor, or quite simply unable to gain a response to their correspondence.
Should this unfortunate scenario come into play, the Act has a proper procedure and protocol as set out above to ultimately deal with this.
Party Wall Award
The key aim of a Party Wall Award is to regularise the building owner’s planned construction works. Once the Party Wall Award is in place, the building owner will then be given a legal right to action the works set out within it.
Therefore without a Party Wall Award in place, a building owner will be progressing their works in breach of the statutory requirements as set out by the Party Wall etc. Act 1996.
It is therefore key that should a scenario come into play whereby there is an unresponsive surveyor on board, swift and inform action is taken, to thereby ensure that the building owner is not unfairly penalised as a result of delayed, or non-response.
If you would like to discuss party wall surveying matters with our team of experienced and qualified party wall surveyors, please feel free to give us a call today. Our surveyors are on call and on hand and ready to assist with your party wall surveying needs and enquiries.