Solicitors News: Avoiding the Cowboy Party Wall Surveyor
Solicitors News: 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.
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
Kindly shared by Solicitors News