S10 (10) of the Party Wall Act 1996 and the Exploitation of the Building Owner

Dispute 

No where in the Party Wall Act 1996 ( ‘Act’) is a ‘dispute’ defined.   

The Collins Dictionary defines a ‘dispute’ as ‘an argument or disagreement between people’.   

If on serving a party wall notice the adjoining owner assents to the proposed  notifiable works, there is not of course a dispute, whereas if there is no response within 14 days of  service a dispute is ‘deemed’ to exist.  A disagreement will also arise of course, if the adjoining owner expressly objects to the proposed works. 

The existence of a ‘dispute’ is important for two reasons.  Firstly, without one there is no jurisdiction for a surveyor to be appointed, and secondly a deemed or existing dispute is a prerequisite for the making of a party wall award.  

As for appointment, RICS issued Guidance Notes on the Party Wall Act states:

'The full extent of the dispute should be given upon which subsequently appointed or selected surveyors can determine’ 

Even where the adjoining owner has assented at the outset,  the Act can still be engaged if during or following the completion of works a ‘dispute’ arises.   The relevant provision is S10 (10) of the Act  and provides the surveyors' tribunal is competent to make awards on matters which are in dispute between the parties and which are also connected with work to which the Act relates. 

The surveyors also have the power to determine any other matter that may arise out of the dispute which has been referred to them or which is in some way incidental to it

Their appointment is fundamental to achieving the purposes of the legislation and is widely credited with avoiding disputes between neighbouring owners that might otherwise result in litigation. The surveyors’ authority and power to make awards is not derived from their contractual appointment, but from the the provisions of the Act.  Failure therefore to follow the requirements of the Act can render an award invalid. 

What happens when a dispute or deemed dispute arises following service of the Notice?

The usual course when a dispute arises, or is deemed to have arisen, following service of the Notice, is for surveyors to be appointed, and for there to be an award, or party wall agreement put in place to regulate the works before they commence.   Usually, this will also provide a mechanism for the resolution of further disputes should they arise.  

The s10 (10 ) appointment 

The position becomes a little less clear when the adjoining owner having assented at the outset   subsequently decides to look to challenge the continuation of the works. On the face of it this triggers a dispute and the opportunity to engage the s10 (10) dispute resolution process emerges. 

However, it does not necessarily follow that just because the adjoining owner has decided for whatever reason to raise a concern a party wall dispute arises. 

There may be a number of reasons for the development. For example, the adjoining owner may have suffered some damage to their property during the course of the notifiable works, and becomes nervous about the prospect of the building owner making the work good, or offering compensation.  The adjoining owner may, by way of a further example, have become fed up with the building owner’s builder taking advantage of previously agreed access rights.   

On the face of it these examples suggest a disagreement, and per se would justify the establishment of the s10(10) process.  However, in both cases the situations could have easily arisen through nothing other than a misunderstanding, and or, without the building owner’s prior knowledge, especially if a contractor is involved.   

Furthermore, for there to be a disagreement there needs to be a difference in views, and if on enquiry the building owner accepts the view of the adjoining owner can it really be said that a dispute exists.  Clearly if one party accepts the position of the other there is no need or justification for the party wall dispute resolution provisions to be invoked.  

It is the uncertainty surrounding the adjoining owners change of heart that often exposes a building owner to the risk of financial exploitation by the ‘cowboy’ party surveyor who often circles looking for opportunities of this type. 

More often or not a building owner is forced due to pure ignorance of the workings of the Act to accept the appointment of the adjoining owner’s  surveyor, even though there is no actual dispute present.  It is only once the surveyor has bedded him or herself in that a dispute is then created to justify the appointment, and the massive fee accumulation that will inevitably follow. Its not too long before the building owner finds him or herself caught up in a protracted, very  expensive and, more to the point, totally unnecessary process, and one from which there is no escape. 

So what can be done if this imprisonment occurs?  

For there to be an award there needs to be an existing dispute.  This is clear from the present tense of the language used in s10 (10). 

This was made clear by HH Judge Bailey in the judgment he delivered in Mohamed and Lahrie and Antino and Stevens (2017) when dismissing the notion that the making of an award is always a necessary feature of the s10(10) process:

‘The argument that the 1996 Act requires the surveyors to proceed to an award even where the parties have reached agreement would be wholly against the general principle that parties who are sui juris are free to make such agreements as they wish to make, provided that they are not illegal in nature. It is also against the clear policy of the CPR for the court either to restrain two parties from reaching an agreement on any subject matter which has been referred to party wall surveyors under the 1996 Act, or to hold unlawful and therefore unenforceable any agreement they do happen to make, simply on the basis that a reference has been made to the surveyors. Very clear statutory words would be required before the court would act in this way, and there are no such words in the 1996 Act’.

If therefore the building owner agrees with the views/demands of the adjoining owner no dispute can be said to exist, and the need for an award ceases.  

In so far as the fees of the adjoining owners surveyor is concerned, even though there would be a strong argument to justify refusal to accept liability ( on the basis there was no dispute available in the first place to justify the s10 (10) appointment), this could ironically be viewed as a dispute,  and result in the making of an award. The best advise would be to offer and pay a small, but reasonable fee, and to then leave the adjoining owner to decide whether or not to run the cost risk of a third surveyor referral. 

Practical Advice 

If notifiable works are to be undertaken always serve a valid party wall notice. 

If the neighbour objects, or does not respond, look to find out why, and wherever possible establish a party wall agreement to regulate the proposed work, and to provide a mechanism for resolution to cover the possibility of a dispute arising in the future.  This will due to the decision in Mohamed ( above)  reduce the risk of exposure to the cowboy surveyor, and also the probability of facing a huge fee liability. 

This advice should equally be followed even if your neighbour consents to the works.  It is not uncommon for long standing neighbours to fall out, often for reasons unconnected with the build,  such as pure jealously.  By having in place an agreement to provide for the resolution of any dispute that might arise later will make it very difficult for s10(10) to be invoked. 

If there is no agreement in place, and a prima facie dispute follows assent, then find out what has gone wrong, and fix it quickly.  Don’t let a dispute develop, and make sure that if the adjoining owner surveyor decides to unilaterally appoint him or herself, that you make it clear there is no disagreement.  Follow this up with a written agreement, and ensure this has provision built into it to resolve any future disagreement that may arise.  This may mean swallowing your pride, and making concessions beyond normal expectation, however do bear in mind that entering the party wall arena can often be  akin to handing the adjoining owner’s surveyor a winning lottery ticket. 

David Pett - Solicitor 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Can a party wall surveyor be sued for negligence?

The vast majority of surveyors who work within the party wall arena discharge their duty in a competent and ethically driven manner. 

There are however, a small minority who continue to let the side down. They operate outside the ambit of their statutory appointment and with little attention or care for the interests of the home owners they touch along the way. 

This presents a problem for many, since once appointed it is very difficult to remove a party wall surveyor. The involvement of an unethical surveyor can often lead to a whole heap of misery and financial loss for the unwitting appointee and or adjoining owner. 

I am often asked whether faced with this situation is it possible to bring an action against the rogue surveyor to seek legal redress for loss stemming from the negligent delivery of the service provided. In other words, can a party wall surveyor be sued for negligence. 

For an action in negligence to succeed the claimant will need to show that a duty of care exists, that the surveyor involved has breached that duty, and that there is a causal link between the breach and the actual loss suffered by the claimant. All of these elements must exist. So for example, if there is no loss then there is no entitlement to damages even if a breach can be proved. 

Duty of Care 

There is a clear contractual and common law duty owed by a party wall surveyor to the appointing home owner. The duty is to undertake work with reasonable care and skill. 

Following a section 10 of the Party Wall Act 1996 appointment, there is also a statutory duty owed, not only to the appointing owner, but also to the adjoining owner.

It has been suggested that each surveyor owes a duty of impartiality to each of the appointing parties and that this must take priority to the interests of their own appointing client ( Anstey, J., Party walls and what to do with them, RICS Books 1996, p. 15. See also Anstey, J., Trouble with the Neighbours, College of Estate Management 1983, p. 21). 

This was recognised in Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens ( 2017) where HHJ Bailey recored in his judgment the following:

'It is important to note that the provisions of section 10 arise when a “dispute arises or is deemed to have arisen”. Once there is such a dispute, whether actual or deemed, either a single agreed surveyor or three surveyors are appointed, or, strictly, in the case of the third surveyor, selected. Where there are three surveyors two of them will have been appointed by (or occasionally for) one of the owners, whether building owner or adjoining owner. These party-appointed owners do (or should) not however act in any sense as agent for the owner appointing them. As the Earl of Lytton said when introducing the Party Wall Bill in the House of Lords on 31 January 1996: 

“The duty of party wall surveyors is quasi-arbitral. Once appointed they have a duty of act properly in the interests of both parties as statutory surveyors, which is a most important safeguard.”

Breach of Duty 

So in what circumstances could a breach arise?

The most obvious breach is bias, where a surveyor clearly fails to take into account the interests of both parties. This is not to say one surveyor should not be able to adopt a position which is contrary to that of the other surveyor. Indeed, this is the reason a third surveyor is often appointed. There is nothing wrong with positioning, however the Act has more to do with serving the interests of the parties. 

As explained the surveyors are under a duty to act fairly and within the spirt of the Act, and to ensure they do not lose sight of the enabling purpose of the Act. The parties are not interested in the construction and interpretation of the Act, the building owner is looking to complete the works, and the neighbouring owner is keen to know what work is to be carried out and what measures will be in place to protect the neighbouring property. 

So those surveyors who look to create disputes which do not exist and or who use the statutory procedure to constantly argue for no purpose other than to cost build, could clearly be viewed as failing to discharge their statutory and common law duty of care.

Equally, a surveyor who fails to assist parties to reach a quick and inexpensive resolution of issues could also be exposed to a negligence clam. It is clear from the Court of Appeal decision in Gray v Elite Town Management (2016) that the “the statutory procedure is intended to be a simple, inexpensive dispute resolution mechanism”. 

It could also be argued that a breach could result from a surveyor failing to advise his appointing owner or indeed both owners of alternative dispute resolution options, such as mediation, when, as often occurs, there is a deadlock between the parties. 

Causation and Loss 

In the case of a surveyor acting outside of his or her statutory appointment, through, for example, raising countless argument on issues which are no longer in dispute, and or constantly moving the ‘goal posts’, and or unnecessary protraction of the process, and or obstructing/hindering the proceedings and or acting in a confrontational manner, and or using the Act for personal gain, there may exist sufficient evidence to prove a breach. 

If it can be shown that there is link between the breach(s) and actual financial loss, then the affected party or parties could very well be in a position to bring a negligence claim against the offending surveyor to claim damages. 

The general aim of an award of damages in tort is to restore the claimant to his pre-incident position. In contract, on the other hand, the aim of a damages award is to put the innocent party in the position he would have been in had the contract been performed.

A damage claim could therefore include :

Extra surveyor fees due to the unnecessary protraction of the process - that is for both building and neighbouring owners

Extra cost/penalties due to the delay in the commencement/continuation of works

Damage to incomplete building works due to prolonged exposure to the elements 

Legal costs incurred in addressing issues created by a rogue surveyor 

The cost for establishing and running an alternative dispute resolution option

Negligence actions are not for the faint-hearted, though do keep in mind that surveyors operate with professional indemnity insurance cover, and that once a claim is intimated you should find yourself dealing with the surveyor’s insurers rather than the surveyor direct. 

David Pett - Property Solicitor with MJP Conveyancing

Avoiding the Cowboy Party Wall Surveyor

Home extensions whether to create more space or to redesign existing layouts are on the increase.  The availability of cheap loans and the stress associated with moving has made home improvement more popular than ever.   

Most home owners are well aware of the need to consider planning and building regulations but are often less mindful of the important role neighbours play in the process.   

The reality is they cannot be ignored, and indeed it is a point of law that neighbours must be given clear notice before work close to the neighbour’s boundary commences.  This includes work on an existing wall, ceiling or floor structure shared with another property, building on or at the boundary with another property and or Excavating near a neighbouring building or structure. 

Making sure this is not missed will or should provide the build proceeds smoothly.  Get it wrong then this could cause delay and add to the cost of the build.

There are plenty of websites out there with good advice on the procedure to be followed when the work proposed falls within the Party Wall Act, and providing the correct notice is given, and the party wall notice drawn in the correct form is served two months before the notifiable works commence, all should be well with the works.

A lot of emphasis is placed on the procedure, yet little focus is given to the those who are actually involved in the administration and delivery of the process, namely the large band of party wall surveyors.  In this article I provide some guidance on the factors to consider when it comes to engaging a party wall surveyor.

What is a ‘Party Wall Surveyor’?

A party wall surveyor is a person who specialises in resolving disputes arising under the Party Wall Act 1996.  Surprisingly there are no specific qualifications required to act as a party wall surveyor.  The Act is now over twenty years old and there is therefore a generation of experienced surveyors who have acquired a good working knowledge of the legislation and case law.   

Many of these surveyors are supported and provided with clear guidance form the Faculty of Party Wall Surveyors, The Party Wall Academy, The Pyramus and Thisbe Club, and RICS.   As with most industries there are good and bad participants. The difficulty for the lay person is in spotting the less ethical of the established surveyors and those who have are seen by some as using the Act as a ‘cash cow’.   

There are endless accounts of home owners who have had to shell out a lot of hard earner money because of the actions or inactions of certain surveyors who have gone out of their way to operate outside the spirit and requirements of the Act.

So, when do you need to appoint a party wall surveyor?

I have identified the type of works which attract the requirements of the Act.    If a Party Wall Notice is required and served and the neighbour agrees to the works in writing then work can commence. If a dispute later arises then both the home owner and the neighbour can look to appoint a party wall surveyor to assist with the resolution of the dispute.   If there is no response within 14 days or the neighbour objects a deemed dispute arises and the need for the appointment of a party wall surveyor arises.  

Both home owners can appoint the same party wall surveyor though it is usual for each to appoint their own surveyor and also what is referred to as a third surveyor who will be utilised if the two appointed surveyors are unable to agree on aspects between themselves.   

The purpose of appointing party wall surveyors when there is a dispute is for the surveyors to make a party wall award which lays out the requirements the builder will need to adhere too when carrying out the party wall works.

What questions do you need to ask when the need to appoint a party wall surveyor arises?

Is there in fact a dispute?

The first question and one of the most important to ask is there in fact a dispute?

For a party wall surveyor to be lawfully appointed there must exist a dispute.  

If the neighbour fails to respond to the party wall notice, or objects it does not necessarily mean there is in fact a dispute requiring the appointment of a surveyor.

It is always advisable to engage with the neighbour, find out what the basis of the objection is, and see whether an agreement can be reached. If successful this can always be recorded in what is known as a ‘Party Wall Agreement’.

Alternatively consider mediation. There are some really good property mediators out there.  This may involve some cost (£1000 - £1500), but if successful it could avoid a protracted and expensive party wall dispute.  It may also preserve that long standing relationship which has existed between the owner and the neighbour.

Even if the neighbour consents a problem could occur during or after the works are completed.   If a party feels aggrieved by the other party the temptation is to look for advice from a party wall surveyor.   It is unfortunately pot luck as to whether the surveyor contacted will provide good morally based advice or not.  

There are a minority group of party wall surveyors who practice in what is known as ‘ambulance chasing’ and who look to use the Act to create or fuel disagreements between home owners.  The majority of surveyors would enquire about the nature of the disagreement and ask the right questions.  They would enquire about the ‘dispute’ and ensure that there is in fact a dispute before looking to send out a letter of engagement.  For example, if the home owner has admitted notifiable works have caused damage then there is not a dispute and there is no need for a party wall surveyor to be appointed.

The party wall surveyor is not there to look for or generate disputes which do not exist.  In fact, the party wall surveyor is there to look after the interests of both owner irrespective of who has appointed the surveyor.  They must act without bias and should do all they can to promote early and cost-effective resolution of all relevant issues.  They should not stray from their statutory appointment by for example becoming embroiled in disputes over boundaries, trespass or other non-party wall works or issues. 

How experienced is the party wall surveyor?

Before appointing ask the party surveyor for a copy of his or her CV.  Ask how often the surveyor has been appointed by a home owner and by a neighbouring owner to make the appointee has plenty of experience of looking after the interests of both.   Ask for references.  Speak to other owners who the surveyor has acted for in the past.   Ask if they have ever been on the end of a RICS or similar body investigation.  Do your homework.  Go onto Google and enter the surveyor’s name.  Those surveyors who have faced previous disciplinary action can often be identified by this type of inquiry, though do please be aware of ‘fake news’.  Look at external reviews and be suspicious of those surveyors who have a whole sting of 5 star reviews!  As I say wider research of the surveyor may be required. 

Ask if the surveyor will act on a fixed fee.   This will limit exposure to your own surveyor’s fees.   If the surveyor says he or she will charge according to the time spent make sure a financial cap on the ‘spend’ is applied and to avoid entering into arrangements where the hourly fee is in excess of £200 per hour.   Beware of the surveyor who says don’t worry about your fees as these will be paid by the other party.   It is normal, but never guaranteed for the building owner to pay the surveyor’s fees of the neighbour.   Do keep in mind however that the surveyor has the right to still charge you for the work not covered by or recovered from the home owner. 

Third Surveyors

The appointed party wall surveyors may need to appoint but not call upon the services of a third party wall surveyor.   Always ask your surveyor to consult with you before agreeing the appointment.   They are not obliged to do so though if asked they may agree.  The same due diligence on the proposed third surveyor should be undertaken to make sure there is no link between the appointed surveyors and the third surveyor that could potentially expose you to the consequence of bias. 

If a referral to the Third Surveyor becomes necessary then ask the surveyor appointed if he can get the Third Surveyor to take on the role more of a mediator than an adjudicator.   This way rather than making a decision that may fuel the dispute the Third Surveyor may be able to speak to the parties and bring about an amicable resolution of the issues. 

Beware some surveyors will use the referral to the Third Surveyor as a means of building further costs.  No one should have to be responsible for costs when the argument is between the surveyors and  amounts to an academic one.   As mentioned the surveyors involved should be protecting and promoting the interests of both parties and not just those of the appointing party. 

What happens if it all goes wrong?

It does happen.  Even with the best will in the world a home owner may find him or herself entrapped  by the actions of a ‘rogue’ surveyor.  So if this happens what can you do?

First of all, ask the good surveyor to speak with the other party direct.  There is nothing to prevent this from happening as the party wall surveyor owes a statutory duty to both owners.  If this doesn’t work resist the temptation to go down the route of a Third Surveyor referral.  This could prove costly.  Instead consider speaking with the other party direct and suggesting mediation. 

Mediation is a good medium for quick and cost effective resolution, and if an agreement is reached this will then exclude the offending party wall surveyor. 

If that doesn’t work the there is a possibility of registering a complaint with RICS or other governing body.  

It may also be possible to explore the possibility of bringing a professional negligence claim against the rogue surveyor.  There is a duty of care, and if it can be shown this has been breached and actual loss has been suffered then  there may very well be a claim. 

At the end of the day the hard working and committed party wall surveyors are suffering as a result of the sharp and wrongful actions of a small minority.  To help these surveyors we must all be more careful in who is appointed  since bringing about a decline in appointments will be the only way, at least for the moment, to rid the profession of its rotten element. 

David Pett

Property solicitor with MJP Conveyancing Limited

davidp@mjpconveyancing.com

Painless extraction from a Party Wall dispute - Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens (2017)

There will be times when parties involved in a Party Wall process become disillusioned with the cost and inadequacies of the mechanism for resolving and determining issues between them. They are often left feeling trapped, facing every rising fees, and looking for a way out. The problem lies with s10(2) of the Party Wall Act 1996 (Act) which prevents a party from rescinding the appointment of a party wall surveyor.

This is the situation  faced by the parties in Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens. ( 2017) HH Judge Edward Bailey. 

The facts were not unusual. 

The, Claimants, home owners ( Owners) wished to carry our development and refurbishment work to their property which included the construction of a basement.  Some of the works featured fell within the Act  as ‘notifiable’ work. 

The owners served a Party Wall Notice on the adjoining owners ( Neighbours).  The Neighbours appointed a party wall representative, the First Defendant,  Philip Antino ( Antino ),  and the Owners appointed Michael Osborne ( Osborne ) a party wall surveyor.  Antino and Osborne then in line with the usual process, agreed on the appointment of Raymond Stevens ( Stevens) , the Second Defendant,  as the third surveyor. 

The subterranean work was complex and required expert input before a re-design of the scheme was agreed and a substantive award was made in 2015.  Shortly afterwards Stevens was replaced by Mr Redler, as the Third Surveyor. 

There then followed a series of legal actions when the Owners and Neighbours fell out with each other during the course of the works.  There was also discord between the Owners and Antino and the surveyors themselves.  

In  May 2016 a mediation took place at which Antino was excluded.  

At the end of the process agreement was reached to compromise the issues between the Owner and the Neighbour. A consent order in the form of a Tomlin Order ( Order) was issued. Though the parties had agreed to end the dispute they had not resolved their differences. The Order provided a mechanism for resolving the differences then existing and any fresh issues which arose in the future. This provided for the issues to be resolved by an independent surveyor and an evaluator. 

One of those issues to be determined in this way was the reasonable fee to be paid by the Owner in respect of the services provided by Antino, Stevens and  Calder, an expert appointed by Antino to assist with the re-design of the scheme. 

Essentially,  the Order took the issues out of the jurisdiction of the Party Wall Act meaning the appointed Party Wall representatives were essentially left high and dry. 

Antino was not happy and claimed the Order  was ultra vires.  He pointed to s10(2) of the Act where it requires all appointments to be in writing and not to be capable of rescission by either party.  Antino and Stevens then wrote to the independent surveyor appointed under  the Order to express their views, and as a result the surveyor decided he could no longer accept the appointment. 

Antino then wrote to Redler and Stevens inviting them to make an award warning if they refused he would produce an ex parte award.  Stevens supported Antino. 

The Owners solicitor on learning of this wrote to Antino seeking an undertaking not to make or purport to make any award and threatening an injunction.   In addition to this Redler disagreed with Antino pointing out the Order did not rescind the appointments under the Act but rather resolved the issues which meant there was nothing further for the surveyors to resolve under the Act. As will be seen Redler was spot on with his assessment. 

Antino jumped on this communication and claimed that as there was a dispute between him and Redler this amounted to an issue under 10(12)( c) and 13 ( c) and was one which could be determined within the jurisdiction of the Act. 

Antino then wrote to Stevens inviting him to resolve 11 areas of dispute in his role as Third Surveyor.  In response the Owners solicitors applied for interim injunctive relief and pending the final hearing undertakings were supplied by Antino and Stevens. 

At the substantive hearing which came before HH Judge Edward Bailey the claimant sought a declaration that Antino and Stevens had no locus to make further awards and for an injunction to prevent them from making any awards. 

Essentially the issue to be determined was whether it was possible for parties by agreement or otherwise to contract out or avoid the operation of the Act. 

The Judge dismissed Antino’s argument that the consent order amounted to an attempted recision of his appointment, and that of Mr Stevens, and  was therefore contrary to s10 (2). The Consent Order did not, nor did it purport to rescind the appointments.  Instead the Judge found its wording made it clear that there was no longer any dispute for the purposes of s10 of the Act between the parties.  

The Parties had agreed a mechanism for considering and resolving any present and future differences so there was no longer any scope for a dispute between them.  S10 only became engaged in the event of a dispute. 

The Judge explained:

‘The 1996 Act provides a mechanism for resolving disputes; there must be a dispute for the resolution mechanism to be engaged. Once there is a dispute, whether actual or deemed, the resolution mechanism provided by the Act is mandatory. Section 10(1) is in mandatory terms, and engages “[w]here a dispute arises or is deemed to have arisen between a building owner and an adjoining owner” and providing that the owners, as ‘parties’ ‘shall concur in the appointment of one surveyor’ or ‘shall [each] appoint a surveyor’. But there must be a dispute before any appointments are made’. 

In terms of future issues it was clear there there existed a perfectly reasonable and workable  process for considering and determining these issues so there could never be any dispute for the purposes of s10.  

As for the issues which arose and existed at the time of the Order relying on the present tense used within s10(10) the Judge found that ‘…..that if a matter ceases to be in dispute there is no dispute remaining to be settled by the surveyors.’ Therefore no need for the surveyors to proceed to make an award. 

This the Judge went onto say was consistent with the Act and the policy of the Civil Procedure Rules:

‘The argument that the 1996 Act requires the surveyors to proceed to an award even where the parties have reached agreement would be wholly against the general principle that parties who are sui juris are free to make such agreements as they wish to make, provided that they are not illegal in nature. It is also against the clear policy of the CPR for the court either to restrain two parties from reaching an agreement on any subject matter which has been referred to party wall surveyors under the 1996 Act, or to hold unlawful and therefore unenforceable any agreement they do happen to make, simply on the basis that a reference has been made to the surveyors. Very clear statutory words would be required before the court would act in this way, and there are no such words in the 1996 Act. 

One might ask why were the surveyors were so keen to keep the Owner and the Neighbour engaged within the the 1996 Act.  In short, the concern was fees, and in Antino’s case the fear without an Award with his fees added he would not be able to avail himself of the summary process  within the magistrates court to seek recovery of the fee if it was not paid. 

There was no question that either party was looking to avoid payment of  the surveyor’s fees and the Judge found it perfectly reasonable for the parties to agree, as they did, that if there was any issue on this that it could not be determined outside the Act in accordance with the agreed process. The fact Antino was deprived of a particular avenue of enforcement was neither here nor there.  There was no need for an Award to be made to record the fees of the surveyors.  

The judge found :

‘In the ordinary course of events, however, it is to be anticipated that the adjoining owners will pay the fees of their appointed surveyor and any engineer engaged by them, and that the building owners will reimburse them for such payments. This provision of the Consent Order is consistent with the normal expectation on the question of fees. There is also the implication in the Consent Order that the adjoining owners will also meet the third surveyor’s fees, or part of them, and thus expect reimbursement of this expenditure by the building owners’. 

So Antino and Stevens were left fully adrift not only in the hands of other surveyors ( those appointed under the Consent Order ) in terms of the assessment of their fees, but also having to meet a substantial cost lability for losing this action. 

Practical Implications 

The practical implications here are worthy of note.  The decision has created a means for those who start off in dispute with a solution to extract themselves from the Act and/or those who operate within it, if  a stage is reached whereby a different  mechanism for resolution of the issues can be agreed.  It also helps those parties avoid the closed shop which exists between certain surveyors when it comes to determining between themselves how much they should pay each other. In this case the parties through the agreement established an independent and probably much cheaper mechanism for resolving any dispute over the amount of fee the owner had agreed to pay the surveyors and expert.  This should come as a relief to those owners and neighbours who often find themselves facing high and disproportionate fees. 

It would suggest that if parties become concerned at any time about the escalating fees of the surveyors within a party wall dispute, it is open to them to agree to end the dispute, and to refer their differences, both existing and present, to an outside mediator to consider and determine.  As the surveyors found here to their extreme cost, there is very little then can do about this apart from claiming  their reasonable fees. 

This authority also suggests that even where a dispute has arisen, there is nothing to require a party wall surveyor to proceed to make an award where, as is often the case, the parties reach an agreement, and there is no  longer a dispute between them.  There is nothing to prevent them from recording their agreement in a different form, and to implement the terms thereof, without the need for an award.  The award offers no more security than a written agreement, and is equally enforceable.

David Pett. Solicitor 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com