What is a Party Wall Surveyor?
A Party Wall Surveyor is someone, other than the parties to the 'dispute', who is appointed under the provisions of the Party Wall etc. Act 1996 ("the Act") to resolve the dispute by way of an 'Award'.
Who can act as a Party Wall Surveyor?
Anyone other than the parties to the dispute (i.e. the 'Building Owner' and the 'Adjoining Owner') may act as a Party Wall Surveyor. However, given that the role of the Party Wall Surveyor is a statutory appointment with 'quasi-judicial' and 'arbitral' responsibilities requiring a detailed knowledge of construction and property law, the role is usually fulfilled by specially trained Chartered Building Surveyors and Chartered Structural Engineers.
When is a Party Wall Surveyor appointed?
A Party Wall Surveyor is appointed in accordance with section 10(1) of the Act as soon as a dispute arises following the service of a notice setting out the notifiable works the Building Owner proposes to undertake.
What is an Agreed Surveyor?
An 'Agreed Surveyor' is a single Party Wall Surveyor jointly appointed by the Building Owner and the Adjoining Owner in accordance with section 10(1)(a) of the Act. An Agreed Surveyor acts alone and is the statutory tribunal. Where an Agreed Surveyor is appointed there is no 'Third Surveyor' or other Party Wall Surveyors appointed.
What is a three-surveyor tribunal?
Where each party appoints their own Party Wall Surveyor in accordance with section 10(1)(b) of the Act, the two party-appointed Party Wall Surveyors must select a 'Third Surveyor', also in accordance with section 10(1)(b) of the Act, to complete the statutory tribunal. Unlike the single-surveyor tribunal, the three-surveyor tribunal must reach agreement between those making the Award in order for the Award to be served. This may be achieved by any two of the three surveyors, the Third Surveyor acting alone or one of the two party-appointed Party Wall Surveyors acting 'ex parte'.
What is a Third Surveyor?
A Third Surveyor is a Party Wall Surveyor selected by the the two party-appointed Party Wall Surveyors in accordance with section 10(1)(b) of the Act. The Third Surveyor forms part of the three-surveyor tribunal, but only acts when called upon to determine a 'disputed matter' by either of the two party-appointed Party Wall Surveyors or the parties themselves. The Third Surveyor may also be called upon to make an Award with one of the two party-appointed Party Wall Surveyors in certain circumstances.
What is an ex parte Surveyor?
An 'ex parte' surveyor is a Party Wall Surveyor who is part of the three-surveyor tribunal but proceeds to make the Award alone in the capacity of an Agreed Surveyor where the other party-appointed Party Wall Surveyor either refuses to act effectively (section 10(6) of the Act), or neglects to act effectively within 10 days of a request being made (section 10(7) of the Act).
Why is the role of the Party Wall Surveyor unique?
The role of the Party Wall Surveyor, in legal terms, is considered to be 'sui generis', i.e. of its own kind. The Party Wall Surveyor fulfils a 'quasi-judicial' / 'quasi-arbitral' role which demands the application of the rule of law and natural justice, whilst applying expert knowledge in order to make a legally-binding determination in resolution of the dispute by way of an Award. The Award can only be challenged by way of an appeal in the Country Court in accordance with the provisions of section 10(17) of the Act, or by way of an application to court to set the Award aside on grounds of nullity where it is considered the Party Wall Surveyor(s) have exceeded their jurisdiction and acted ultra vires. The Party Wall Surveyor is neither a judge, arbitrator, mediator or expert witness, but a combination of all to a certain degree.
What does a Party Wall Surveyor do?
The primary duty of the Party Wall Surveyor is to resolve the dispute arising from notice by way of an Award. The Award is to determine the time and manner of executing the works and to deal with matters incidental to the dispute, including the costs of the Party Wall Surveyor(s) in making the Award. However, the Party Wall Surveyor should also undertake a detailed process of due diligence to ensure the notified works are legal and lawful and can be conducted in a way that does not cause unnecessary inconvenience to the Adjoining Owner. The Party Wall Surveyor will ensure that the Award clearly sets out the nature and scope of the notified works and shall call for detailed drawings, specifications and construction detailing as necessary. The Party Wall Surveyor may appoint an 'Advising Engineer' to provide assistance on structural issues, and may appoint other specialist consultants to assist as necessary. The Party Wall Surveyor will usually record a 'Schedule of Condition' of the Adjoining Owner's property before the notified works are commenced and append this to the Award as a reference for the benefit of both parties. The Party Wall Surveyor may also deal with applications for 'security for expenses' and access requests/licences.
Does each party have to appoint a Party Wall Surveyor?
Ultimately, yes. However, each party does not have to appoint their own Party Wall Surveyor. The parties can jointly appoint a single 'Agreed Surveyor'. This is permitted at section 10(1)(a) of the Act.
What happens if the Adjoining Owner refuses/fails to appoint a Party Wall Surveyor?
Once a dispute has arisen following service of notice, then the Adjoining Owner must be give 10 days to appoint a Party Wall Surveyor. In the event the Adjoining Owner refuses to appoint a Party Wall Surveyor, or fails to make such an appointment within 10 days of the request being made to do so, the Building Owner will be at liberty to appoint a Party Wall Surveyor on the Adjoining Owner's behalf in accordance with section 10(4) of the Act.
Does a Party Wall Surveyor monitor or sign off the works?
No. The Party Wall Surveyor is effectively 'functus officio' once the Award has been served. This means the Party Wall Surveyor's role is concluded as soon as the dispute has been determined by the Award. However, in the event a further dispute arises in relation to the works authorised by the Award, including damage or compensation, then the Party Wall Surveyor resumes the role and shall determine the further dispute. A new tribunal could not be appointed to fulfil this task because Party Wall Surveyors can only be appointed following service of notice, and there would be no basis for serving a further notice when the dispute arises out of matters connected to the original notice and subsequent Award.
Who pays for the Party Wall Surveyor?
The costs of the Party Wall Surveyors (i.e. professional fees and disbursements) shall be paid as determined by the Party Wall Surveyor(s) in the Award. In instances where the notified works are solely for the benefit of the Building Owner to enhance the Building Owner's property, then it is unlikely any costs will be awarded against the Adjoining Owner. However, where the notified works are for the mutual benefit of both parties, then the costs of the Party Wall Surveyor(s) will be allocated accordingly within the Award.
How much does a Party Wall Surveyor cost?
A Party Wall Surveyor will usually charge a fee based on their time expended in discharging their duties at a specified hourly rate, plus disbursements and VAT as applicable. The chargeable rate will vary depending on the qualifications and experience of the Party Wall Surveyor, location and the complexity of the matter.
Can a Party Wall Surveyor be dis-instructed?
No. Section 10(2) of the Act prohibits rescision of appointments. The only way in which a properly appointed Party Wall Surveyor can be replaced is if they die or if they become or deem themselves incapable of acting.
What happens if my Party Wall Surveyor dies or resigns before the Award has been served?
The party whose Party Wall Surveyor has died or resigned should be invited to appoint a replacement Party Wall Surveyor in accordance with section 10(5) of the Act, but cannot be compelled to do so. If that party refuses or fails to re-appoint, then the remaining two surveyors in the three-surveyor tribunal must proceed to make the Award. In instances where an Agreed Surveyor dies or becomes or deems themselves incapable of acting, the appointment process must start 'de novo', i.e. from the start. This is sanctioned by section 10(3) of the Act.
Can I complain against the Party Wall Surveyor if I disagree with the Award?
A complaint can be made to any professional bodies to which the Party Wall Surveyor belongs, but such a complaint will be meaningless and will not change the outcome of the Award. The Party Wall Surveyor fulfils a statutory appointment enshrined by way of an Act of Parliament. The only recourse available to a party who objects to the determination made by the Party Wall Surveyor in the Award is to appeal the Award itself, as prescribed by section 10(17) of the Act. If the Party Wall Surveyor has conducted themselves in a manner that breaches any rules of conduct of the professional bodies to which they belong, then there may be grounds of complaint as a matter of conduct, but this, again, will not change the outcome of the Award. The Award will be legally-binding and cannot be questioned by any court if not appealed.