Showing posts with label party wall surveyor. Show all posts
Showing posts with label party wall surveyor. Show all posts

Thursday 10 May 2018

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

Monday 30 April 2018

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

Sunday 28 January 2018

Party Wall Act Costs - Protecting the building owner from the Highwayman

Introduction 

One of the most worrying aspects of entering the Party Wall Act 1996 (Act) arena is the uncertainty surrounding  fees, or as they are referred to within the Act -‘costs’. 

If you are fortunate enough ( or some might say lucky enough) to have at your side a competent party wall surveyor, and one with a moral compass, the chances are you will derive a certain degree of protection.  However, there is still no guarantee you will not need to set aside a considerable sum of money to cover the cost of becoming trapped within the Act.  This applies equally to both building owner and adjoining owner, and one must not forget that if an adjoining owner’s surveyor does not recover all of his costs from the building owner, there is every possibility the adjoining owner may be left to meet the remaining liability. 

The problem of high, unreasonable and unpredictable costs is caused, in part, by a piece of malfunctioning legislation, and patly as a result of certain unconscionable conduct on the part of some of those so called ‘experts’ working within and purporting to discharge their statutory duties under the Act. 


……the peculiarity of the Act is such that the appointed surveyor does not have to be qualified or trained in party wall matters or indeed affiliated to any professional body. Consequently, they are therefore not bound by the code of conduct or ethics of any professional body. Dealing with these types of surveyors ………………that adopt these procedures is very frustrating. Their approach is detrimental to principles of the Act and makes the whole process extremely difficult to manage.


So what does the Act say on costs?


The relevant parts can be found in sub-sections of section 10  of the Act:-

Sub-section (12): An award may determine... (c) any other matter arising out of or incidental to the dispute including the costs of making the award

Sub-section (13): The reasonable costs incurred in - (a) making or obtaining an award under this section... shall be paid by such of the parties as the surveyor or surveyors making the award determine

This means the costs must have been incurred in connection with the making and production of the award, and must also be reasonable in terms of relevance and the amount of fee sought.  

What does the cost of making or obtaining an award include?

According to leading Party Wall Barrister Nick Isaac (Party Wall Surveyors and their "reasonable" fees - published January 15, 2018):

 ….all of the to-ing and fro-ing which goes into producing the document entitled "award" which the surveyors eventually produce - generally speaking that is almost all of the surveyors' time between a deemed dispute arising 14 days after service of a notice under section 3 or section 6(5), and the award itself being signed. It will include communicating with the other surveyor, obtaining and checking the relevant information for the making of the award, and the time spent actually drafting the award, or revising it.

What is not included is the cost of actual or contemplated litigation. 

This was recognised by  Etherton J, as he was then, when delivering the only judgment of the Court of Appeal in Reeves v Beatrice Blake [2009] EWCA Civ 6111 :

‘The purpose of the 1996 Act is to provide a mechanism for dispute resolution which avoids recourse to the courts. A power of the appointed surveyors under the 1996 Act to make provision for costs incurred for the purpose of actual or contemplated litigation in court would be inconsistent with that statutory objective. Such litigation, resulting from noncompliance with the dispute resolution mechanism, falls entirely outside the statutory dispute resolution framework.”

The view was reaffirmed in Reeves v Blake [2010] 1 WLR 1.

Nor does it include the cost of enforcing an Award, as was recognised by HH Judge Bailey in  Reeves v Young Antino (C20CL109 Approved Judgment(1).  Upon being required to consider the  enforcement costs of  Philip Antino the judge found :

‘It seems to me that the legal costs of pursuing a sum for costs awarded by a surveyor, or surveyors, to himself or themselves, in an award is not properly considered to be a matter arising out of or incidental to the dispute. On the contrary it is a matter which arises outside the 1996 Act. All courts of law govern their own procedures, including any incidence of costs arising out of proceedings before the court. The fact that a party wall surveyor has to go to court to enforce his award leaves him in no worse a position than any other litigant. He is entitled to claim such costs as are available to him in the relevant court’s procedures. It is possible for a surveyor to enforce his award either in a Magistrates’ Court or in a County Court and he may make his choice and obtain such costs as are available in each of those different courts. Therefore in including the passage which I have put in italics it seems to me that Mr Antino is going beyond that which he is entitled to do under the 1996 Act’.  


So which items of work are covered? Is all communication between the surveyors post appointment covered per se?  I would argue no it is not.  The purpose of each letter, telephone call, or other exchange should be examined.  For example, if the surveyor acting for the adjoining owner has written numerous letters unnecessarily arguing each and every point and has failed to focus squarely on discharging his or her statutory duty, should the owner be responsible for those fees?  Moreover what is the position where unnecessary work has been generated for no reason other than deliberate procrastination, or the constant shifting of position, designed to increase that surveyor’s fee entitlement? 

More often than not a party wall dispute will involve work that falls outside of the jurisdiction of the Act, but which an unscrupulous surveyor may attempt to include as part of his or her party wall costs. For example, the time spent on addressing and responding to common law issues, such as encroachment.  There is nothing of course preventing the surveyor from recovering these fees from his or her appointing owner, but without making sure cost claims are considered closely, there exists a risk that a building owner may be charged for this non party wall work.  Added to this is the problem the mechanics of the Act leaves it to the surveyors involved to agree fees between themselves. This can often leaves the home owner excluded, and left only with the option of an appeal to the County Court. 

The need to protect the building owner was recognised by Phillip Antino in his article:

‘The appointed surveyors‘ duty is to ensure that the procedures are applied properly and this would include ensuring that a building owner is not put to any unreasonable expense, either as a consequence of unethical ruthless strategies adopted by the adjoining owner‘s surveyor, or indeed as a consequence of any false claims made by an adjoining owner’.

Mr Antino drawing on his wealth of experience, clearly recognised the problem faced by the building owner when faced with a demand for unreasonable fees, and of the need for surveyors, particularly third party surveyors ,to be alert to unreasonable practices of this type. 

Reasonableness 

Tied in with the need for costs to be tied into or arising out of the dispute, is the question of reasonableness. Nick Isaac in his article suggests the assessment of fees raised by an adjoining owner’s surveyor should not be regarded as routine, but should comprise instead of a more considered approach, taking into account some fundamental principles.  He suggests the following questions would be asked when looking at a breakdown of costs:

Firstly, was it really necessary for that piece of work to be undertaken?  For example, if ten letters were sent when only two were actually necessary, then only the fee for those two letters should be allowed.

Secondly, was the time spent reasonable having regard to the nature of the dispute and the skill and experience of the surveyor in question.  For example, if the only issues between the parties comprised of some minor damage occurring during the performance of notifiable works, should an adjoining owner’s surveyor be able to claim, without challenge, a large number of hours  for investigating, reporting, negotiating and producing an award?

This has particularly relevance when faced with a surveyor who has a very high hourly rate and who records every minute of time spent working.  

This was one of the other issues His Honour Judge Bailey was asked to determine in Reeve v Youngs  and Antino.   

Commenting on the reasonableness of Mr Antino’s charging rate of £350, and the time he spent as one of the appointed surveyors, the Judge said:

‘Fees involve both hourly rate and hours spent. A high hourly rate, if it is to be reasonable, will be justified only where the surveyor has and demonstrates particular expertise or exercises such efficiency that he carries out more work than a surveyor for whom a lower hourly rate is appropriate. In comparison with the charges made by surveyors in many of the awards that have been before this court £350 per hour is a very high rate. Casting one’s eye down the breakdown of Mr Antino’s fees one can well envisage he would have very great difficulty indeed in persuading a court that the hours spent at this hourly rate was anything approaching reasonable. But although I have highlighted the difficulty inherent in setting out an hourly rate in a party wall award I do not consider that I can properly go so far as to say (as I have been invited to do) that hourly rates should not be set by surveyors or that any particular hourly rate, subject, of course, to ludicrously high rates (and £350 ph while very high in comparison with the market as a whole cannot be stated to be ludicrously high), must necessarily be invalid within the context of a party wall award’.

This suggests the following :

  • It not proper for an Award to record an hourly rate.

  • A surveyor can essentially charge his or her time out at any rate providing it is not ‘ludicrously high’.

  • There is a reasonable expectation that where there is a high hourly rate, the time spent by that surveyor should be significantly less than that of a less experienced surveyor with a lower hourly rate.  The cost of research is a good example of time that should not be charged to a building owner by an experienced surveyor.  

The third principle and perhaps the most important one is proportionality.   

As Nick Isaac points out, this element has for a longtime spent a very prominent role in the assessment and determination of fees claimed in litigation. He argues there is no reason for this to be any different in the context of assessing the reasonableness or otherwise of a surveyor’s fee. 

He explains:

‘This is a concept which is universal in consideration of fee assessment in civil litigation, but which appears generally little-known or understood amongst surveyors. A cynic might argue that this is because proportionality can have a very significantly depressing effect on levels of recoverable fees. Nonetheless, I would suggest that proportionality is very much at the centre of any consideration of reasonableness in terms of fees. In essence, and borrowing from the CPR definition of the same, the person determining the reasonableness of fees has to consider whether the amount of fees which are sought to be awarded bear a reasonable relationship to: (a) the cost of notifiable works which are the subject of the award, (b) the complexity of the dispute resolved by the award, and (c) any additional work generated by the conduct of the paying party.’

Some may say this is nothing more than a statement of common sense.  How could a surveyor reasonably raise a fee of, say £3,000 for representing an adjoining owner in a dispute where the notifiable works to be recorded in an award only amount to say £200?  Complexity I accept, may be a factor, but as we all know, as indeed Mr Antino hints at in his article, there are certain surveyors who can make even the most straightforward of disputes complicated and protracted 

One must keep firmly in mind the purpose of the Act.  The Act was designed to prevent and resolve disputes.  It was never intended to provide unscrupulous surveyors with a vehicle to ‘cost build’ at the expense of the paying owner.   Nick Isaac in his article calls on the profession and regulators to do more to address this problem:

‘Although the majority of party wall surveyors, objectively viewed, approach the assessment of reasonable fees in a sensible way, there are unfortunately a few surveyors who treat the Act as a licence to print money. I have expressed the view previously, and do so again, that the surveyor's profession as a whole, or certainly those who practice in the arena of party walls, should be very concerned at the damage which such surveyors are undoubtedly doing to the reputation of the profession as a whole. If professional bodies do not take appropriate steps to regulate such matters, the courts and, ultimately, parliament, may do so’.


So what action can be taken when faced with an unreasonable cost demand?


To begin with, there is nothing to prevent you from reminding the surveyor of his or her statutory duty.  


Each surveyor owes an individual duty of impartiality to each of the appointing parties and that this must take priority to the interests of their own appointing client.   There is also an overlapping duty of diligence in administering the provisions of the legislation which would be owed to both parties equally. 


‘…a failure by surveyors to deal promptly with matters arising under the legislation, possibly even in response to express instructions from their appointing owner, would therefore result in a potential liability to the other appointing owner’.

These incidents are not isolated. They are increasing in number and, as Nick Isaac alludes too, there is a need for surveyors to ‘police’ their colleagues more closely and to refer rogue surveyors to their regulator. There is a collective responsibility to do more to stamp out this fast growing epidemic.  

The next option is to consider the ex parte procedure.  Mr Antino is an advocate of this process, and in his article he suggests that a building owner’s surveyor faced with a unreasonable  fee demand should simply acknowledge the fee as unreasonable, and to then, after giving appropriate notice, proceed to draw up and serve an award ex parte.

The enabling parts of the Act are sections 10(6) and 10(7) which provide :

Section 10(6) of the Act states: “If a surveyor [...] 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 has been an agreed surveyor”. 

Section 10(7) states: “If a surveyor [...] 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”

The authority of Frances Holland School v Wassef [2001] makes it clear that to rely on this part of the Act there is a strict need to for evidence to be recorded within the ex parte award to illustrate either a refusal to act effectively or a failure to act effectively within 10 days of a request.  This will include evidence to show that whatever action may have been taken by the other surveyor has not been effective. 

There is an argument that by proceeding in this way that the surveyor chasing the unreasonable fee could be left high and dry, at least in for far as making a recovery from the building owner. 

In an article  Going It Alone: ex parte Awards’ James McAllister explains the risk:

‘Taking matters further, it could be submitted that the fees of the surveyor refusing or neglecting to act need not even be entertained by the ex parte surveyor since their services (and naturally their appointment) will have been summarily discharged with the service of the ex parte award; this example, of course, assumes the ex parte award covers all the points the surveyors were appointed to settle. Accordingly, the non-participating surveyor will no longer exist as a statutory member of the tribunal and fees need not, therefore, be awarded. If the supplanted surveyor wishes to pursue his fees with the appointing party directly, then that is their prerogative, but this could only be enforced contractually, if indeed a contract exists’. 


Mr Antino in his article also warns that in adopting this ex parte procedure there is still a need to:

‘[d]demonstrate reasonableness at all times; again, to protect your owner against any claims for costs [and] [a]pply the Act procedures with impartiality; you should then achieve the same objective, which is to ensure that the building owner only pays reasonable costs’.


Finally, there is a need to consider the role of the Third Surveyor. 

It is open to the parties to agree an award on the agreed issues and to then refer the issue of fees to the Third Surveyor for determination. There are costs risk associated with this referral for the losing party, and therefore one must always take a pragmatic approach when considering whether the fee is reasonable or not. 

The building owner has to trust the Third Surveyor to understand what is involved in the assessment, of what is and what is not reasonable, and does not simply proceed to rubber stamp the fees. 

This will involve a detailed look at the time spent, the purpose and relevance of each item of work and reference to the level and expertise of the surveyor in question.  The conduct of the surveyor also needs to be considered.  Nick Issac in his article articulates this argument well when he says:

‘When it comes to considering the reasonableness of fees, it is incumbent upon the person assessing that reasonableness to analyse who is responsible for the continuation or escalation of any dispute. Overly aggressive or adversarial correspondence is often, although not always, a good indicator that a surveyor is ramping up disputes rather than seeking to resolve them. Appointing owners should not be expected to foot the bill for party wall surveyors feuding about their pet party wall arguments.

Surveyors should be particularly alive to the fact that assertions of unreasonable conduct by one party or surveyor against the other, are sometimes made by the most unreasonable person involved. This is a judgment much easier for a truly independent person to reach, but an objective analysis of correspondence is generally a good starting point in determining such matters’.

One tactic open to the challenging party is to make an offer to pay a reasonable fee and to produce this offer prior to agreeing to the Third Surveyor referral.  Once made, and assuming it not agreed,  ask the Third Surveyor to reserve making a costs award at the end of his assessment until details of the the rejected offer can be communicated.  If the assessed fees are lower than the offer then there would be good argument that the cost of the referral should be visited upon the adjoining owner. This may make the adjoining owner surveyor think twice about making the referral. 

Conclusion 


No building owner acting reasonably and in accordance with the Act should be required to pay   to the adjoining owner’s surveyor anything other than a reasonable fee. If there is evidence of mischief on the part of the adjoining owner’s neighbour then there exists a duty on the party wall community to make sure the conduct is exposed and stamped upon.  To allow unfair practice of this type to continue is unprofessional, unethical and possibly criminal.  

There is really no better way to conclude than to record the wise words of warning made by James Jackson FFPWS in his editorial (Faculty of Party Wall Surveyors’ Newsletter: ‘Party Wall Surveyor‟, January 2011):

‘If the image of a party wall surveyor is that of a person charging exorbitant fees whilst offering a basic service and it seems demonstrating little in the way of skill and expertise let alone advice and guidance, it is probable that he may be considered as the twenty first century equivalent of the highwayman. There is plenty of opportunity to earn reasonable fees and make a comfortable living from party wall work. It is therefore incumbent upon members of The Faculty of Party Wall Surveyors to set examples of reasonableness, fairness and impartiality and to demonstrate to the outside world that we are possessed of a level of integrity which sets up apart from those who are only in the business to get all that they can out of it’

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

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