Surveyors are often asked to advise whether the Act applies to specific building operations. They should be familiar with the circumstances in which the Act applies and should be able to advise whether service of notices will be required in particular situations.
When advising in this context, surveyors are acting in the capacity of professional consultants and owe duties to their clients on this basis. This capacity may later change to that of an ‘appointed surveyor’ once notices have been served and a dispute has arisen under the Act. At every stage of their involvement with party wall work, surveyors should be clear about the capacity in which they are currently acting and to whom their professional duties are owed.
What does the surveyor do?
The surveyor (or surveyors) will settle the matter by making an “award” (also known as a “party wall award”). This is a document which:
- sets out the work that will be carried out
- says when and how the work is to be carried out (for example to limit continuous periods of time when excessively noisy work can be carried out);
- specifies any additional work required (for example necessary protection to prevent damage);
- often contains a record of the condition of the adjoining property before the work begins (so that any damage to the adjoining land or buildings can be properly attributed and made good);
- allows access for the surveyor(s) to inspect the works while they’re going on as may be necessary (to see that they are in accordance with the award).
What Authority does the surveyor have?
Where surveyors have jurisdiction under the Act, they have power under section 10(12) to make binding awards. These may determine any of the following issues:
- the right to execute work under the Act;
- the time and manner of executing any such work; or
- any other matter incidental to the dispute referred to them, including the costs of making the award.
An award which purports to determine some other issue will have exceeded the statutory powers (ultra vires), thus the award or part thereof may be invalid. The surveyors’ power to determine the right to execute work is, in reality, only a declaration of the existence of a particular statutory right in a particular situation. The surveyors have no power to confer new rights on the parties. On the other hand, the power to determine the time and manner of execution of work is central to the surveyors’ role.
Surveyors have an express power, under this heading, to adjudicate on the professional costs of making the award. They also have the power to implement the statutory rules on compensation, making good and the liability for the expenses of the work. Surveyors should, however, be extremely cautious about assuming the existence of powers to deal with matters that are in some way incidental to the dispute referred to them.
The Court of Appeal has confirmed that surveyors do not have any authority to award legal costs for the time and expense of threatening to seek an injunction, or similar relief, via the courts for noncompliance with the Act. This does not mean a wrongful party is absolved of the responsibility for such fees and costs, only that the administration of the recovery via a party wall award would be found to be incorrect.
Who can I appoint as a surveyor in the event of a dispute?
The term “surveyor” under the Act can include any person who is not a party to the matter. This means that you can appoint almost anyone you like to act in this capacity. However, the person should not have already been engaged to supervise the building work. The surveyor should also have a good knowledge of construction and of procedures under the Act. You cannot however act for yourself.
Some people are obviously more suitable than others. You may wish to look for a qualified building professional with some experience or knowledge of party wall matters.
Who pays the surveyor’s fees?
Usually the Building Owner will pay all costs associated with drawing up the award including the adjoining owner’s surveyor’s fees, if the works are solely for the Building Owner’s benefit.
However, in certain circumstances where work is necessary due to defect or need of repair the adjoining owner may have to pay costs. In these circumstances the costs are split based on the use each owner has of the structure or wall concerned and responsibility for the defect or need of repair if more than one owner makes use of the structure or wall concerned.
The surveyor (or surveyors) will decide who pays the fees for drawing up the award and for checking that the work has been carried out in accordance with the award.
How much will a surveyor cost?
Surveyor’s fees are a matter for individual surveyors. There are no set charges. It is for clients to negotiate fees with the surveyor(s).
The Act provides for surveyors to be paid the reasonable costs of drawing up an award. However, if the owner or the adjoining owner feels that a surveyor’s costs are unreasonable they may ask for a breakdown of costs, e.g.an hourly rate and number of hours of time being charged for.
Here at Prestige (Party Wall) Surveyors Ltd, we are very transparent with our fees. We will provide you with a quotation before we are appointed and will only charge what is deemed to be a reasonable fee. We are open and honest to all our clients as we feel it creates a better relationship between us and the clients – in short we have nothing to hide as we try to provide a Prestige service!
Please note – Although we charge you a standard rate (what we charge is what you pay us), if an adjoining owner appoints their own surveyor, the costs would vary.
Is the surveyor’s award final?
The Award is final and binding unless it is rescinded or modified by a county court on appeal. Each owner has 14 days from service of the award on them to appeal to the county court against the award.
An appeal should not be undertaken lightly, and an unsuccessful appellant may incur an award of costs against them. An owner considering an appeal may well wish to seek legal advice.
What happens if I do not agree with what my appointed surveyor is doing?
You are unable to rescind his appointment, but you can approach the Third Surveyor to resolve the matter for you. However, if you have chosen to have just the one surveyor called ‘Agreed Surveyor’, then there is no Third Surveyor to call upon. This is why you should take care in selecting a surveyor and more particularly as to whether you just need the one ‘Agreed Surveyor’.
If there is no dispute does a surveyor need to be appointed?
No. If no dispute arises there is no requirement under the Act to appoint a surveyor.
What can I do if I am not happy with the conduct of a party wall surveyor?
Concerns about the conduct of a surveyor can be raised with the Citizens Advice consumer service and/or the trading standards body for the area concerned. Contact details can be found at: http://www.citizensadvice.org.uk/.
If the surveyor is a member of a professional body, such as the Royal Institute of Chartered Surveyors (RICS), the relevant professional body can also be contacted to find out about the complaints procedures they have in place. If the surveyor is from a firm that has joined the Ombudsman Services a complaint may be raised with them.
Note: The above remedies are appropriate where you wish to dispute the way a surveyor(s) has carried out his task, but not where you are simply unhappy about the conclusions of the surveyor.
How is the Surveyors’ Awards Enforced?
A valid award creates legal obligations between the parties. Therefore, a breach of the terms of the award creates a legal liability, which can form the basis for court action by an aggrieved party. A successful action in the courts would result in a court judgment, which could then be enforced against the defaulting party in the normal way.
The award is for the benefit of the owners, so in the event of non-compliance with an award, it is for the owners to take enforcement proceedings. Surveyors should therefore always recommend that clients obtain legal advice in respect of enforcement of any part of an award.