Party Wall Act Surveyors: Choose carefully
The Party Wall Act 1996 (“The Act”) provides a framework to facilitate building work near a neighbouring property. If you are planning work that will affect your neighbour’s party wall structure or boundary, it is important to follow the Act.
Before any work commences, it is advisable (not compulsory) to appoint a specialist party wall surveyor. That way, you can ensure that the appropriate notices and the correct procedure is triggered. This is crucial to achieve a binding agreement, known as a final award. If the procedure is not followed, the award is invalid. An invalid award provides no protection and will delay the building work.
The least expensive and preferable route is if you can agree to appoint the same surveyor. If you cannot agree, you will have to appoint your own surveyor. Respective surveyors are not acting as agents for the parties who have appointed them, which means they are not there necessarily to advocate a viewpoint. The job of an expert in party wall Act matters is to follow the law as set out in the Act. Once appointed, the parties cannot dispense or replace a surveyor, except in very limited circumstances. For example, when the surveyor is incapable of acting or neglects to act. Appointed surveyors can take decisions which are binding on the parties, so choose your expert carefully.
The law expects the experts to take pragmatic decisions to try and resolve issues. Ultimately, if there is no agreement, a third surveyor may then be appointed by the parties to act as an arbitrator. That appointment must be carried out properly and strictly in accordance with the law, as the third surveyor’s position is otherwise without the power to make a binding decision on the parties as envisaged by the Act.
A broad breadth of powers is granted to the surveyors under the Act. Appointed surveyors are largely left to operate the process towards a final party wall award, but they must not act outside of the powers given to them under the Act. Normally, once an award has been made, there is limited time within which the final decision can be appealed by way of court proceedings. An appeal to the court is subject to a 14 day time limit from the date of a final party act award. Otherwise, the decision is conclusive and cannot be challenged. There is no time limitation to challenge an award if the surveyors have exceeded the power granted to them by the Act.
When cases have reached the court, Judges have adopted a pragmatic view allowing matters to proceed and being less inclined to intervene to set aside an award. Judges will not intervene in every possible challenge to the surveyor’s jurisdiction, as that would undermine the legislation and make it fail. Obstructive Adjoining Owners need to be aware of the limitations of what can be achieved by seeking to challenge party wall issues through legal action. Always try and pick a conciliatory route to a solution, if at all possible. If a pragmatic and conciliatory approach cannot be reached, then you probably do need to seek legal advice. Only by being able to establish whether the surveyor’s jurisdiction under the Act has been exceeded, can you really overturn an award.
Debra Wilson is a specialist in building and housing disputes.