Naturally, a party wall dispute incurs the expertise of a party wall surveyor. In fact, there are more often than not multiple party wall surveyors involved.
These party wall surveyors are often concerned as to how they can get paid, and how to go about enforcing payment in a given situation.
Let’s take a look at how the law can be used to help.
The Two Jobs of a Party Wall Surveyor
So, a party wall surveyor, whether it’s somebody who has been appointed by the building owner or the adjoining owner, will have two important jobs.
First of all, it is their responsibility to help resolve the dispute that has arisen over the party wall. They do this by deciding how an award is given to the building owner, by reaching a concession with the adjoining owner that is mutually beneficial for both parties.
Second of all, it is the job of a surveyor to provide an advisory presence to the client, making sure that they understand their obligations under the act. It’s also important that they tell clients about anything that falls outside the act that is relevant to the particular situation at hand.
The Client Care Letter
So, what the majority of surveyors will do is get their clients to sign what is called client care letter. Think of it as a letter of contract, which basically states that the client agrees to the business terms laid out by the surveyor, and at the same time, makes one party, usually the adjoining owner, responsible for paying the fees of the appointed party wall surveyor.
A letter like this will cover all bases, often including the provision that even if an award is not given to either party, the party wall surveyor still gets paid anyway.
Traditionally, it is often the case that the party wall surveyor of the adjoining owner has accepted an appointment to provide support without requiring a client care letter. However, this is a noble idea at best, but in practice, often leaves the party wall surveyor without protection for payment.
Using the Law
Now, we arrive at where the law comes in. If a client care letter has been signed, then a contractual obligation has been created whereby the owner of the services is obligated to demand payment.
To put it into layman’s terms, if the adjoining owner has signed the letter, then they have to pay the party wall surveyor. Legally, they are now obligated by law to make a payment.
In situations where the fees of the party wall surveyor are the subject of an award, there are two ways to claim, and one way that you can’t.
You can’t claim using CPR 70.5 and its associated form N322B through the County Court. Unfortunately, a lot of party wall surveyors try to use this method, and they put themselves in danger of indemnity costs.
As a result, you have two main methods as a party wall surveyor to claim your costs in a legal situation:
You launch a complaint in the magistrates court and section 58 of the Magistrates Court Act 1980, by using form 104.
Alternatively, you issue a simple claim in the County Court. Typically, you do this with an online portal, which is generally operated by HM Courts and Tribunal services.
What Method Do You Use?
Picking what method to use is important. The big advantage of using the magistrates court is that the courts are generally a lot more generous in terms of awarding the costs.
However, the actual awarding of the costs is entirely at the discretion of the magistrate themselves. It’s generally down to whatever amount they consider to be reasonable. It’s often the case that magistrates don’t have much experience with civil costs, which means that they do often award costs on a complete indemnity basis.
Furthermore, it’s important to acknowledge that if a claim is disputed, then a hearing might take up to 3 months to get going.
Probably the biggest disadvantage of using the magistrates court is the fact that there is only about six months from the time that you serve the award to issue a complaint. That’s not a lot of time.
Contrastingly, we have a county court. There are benefits to this, like for example the fact that you can get the availability of the judgement in advance, the ability to award interest on the costs, and then the immediate availability of enforcing said judgement once it’s been obtained. It’s a lot quicker as a process, which is helpful in many cases.
In a lot of cases, the County Court, if it chooses to bring a claim based on an award, will also bring a claim based on contractual terms set out in the client care letter. This means that potentially, you can make a bit more money.
Unfortunately, there are some drawbacks. Like, for example, if a claim does happen to be disputed, then it can take up to 12 months to get a hearing. That is a very long time, and after nullifies any benefit would’ve come from actually getting the cost in the first place.
Because of this, the County Court is only considered to be the best place for bringing a claim. However, if you are bringing a claim that is based on an award, the magistrates court provides a suitable alternative.
Final Thoughts
Obviously, picking the right place to file your claim is important. There are lots of different things to consider, because every claim is different, but you have two different ways to do things.
As a party wall surveyor, occasionally you will run into people who don’t want to pay for whatever reason. When this happens, you need to make sure that you work quickly to recoup your money as best as possible.
A swift resolution is the best thing for all parties, because it will guarantee an easy way to get money without a protracted court battle.
If you would like to discuss your party wall surveying requirements with our team of surveyors, give us a call today, we will be more than happy to advise.
