WHO PAYS THE FEES – THAT DEPENDS!?
I know it all can get quite confusing, especially since the profession of people dealing with the Party Wall Act is not regulated, allowing for a formation of a perfect storm, where nearly anyone can become a Party Wall Surveyor and where everyone can make their opinions no matter how far damaging or removed from reality these are. The sad truth is that in the process the usual people who suffer such damages are the building owners, after all, it is the building owners who argue, not the surveyors.
The stance of damaging opinions can be extended to Small Courts Cases where judges are often not well accustomed to the dealings of The Act and make judgements of far greater impact than just on the disputed matters, with the only further recourse to the higher instances of the Court. There is little of authoritative cases that give some form of precedence as these are the published judgements of Higher Courts but there are ample Small Courts Judgements that often contravene one another yet many Party Wall Surveyors bring them up as definitive arguments.
Although I am not a solicitor nor have formal training in legal matters, I will try to make the most sense out of the whole process based on my experience:
The Party Wall Act is a Civil Matter dispute resolution act that attempts to remove neighbouring quarrels from the judicial system (freeing the Court’s time and generally reducing costs of proceedings to all involved, perhaps in part protecting people who could not otherwise afford representation, but this is a grey area as you will find out in my further points)
The Party Wall Act gives rights to the Building Owner to execute the works defined in The Act and sets the procedure to follow.
The process starts with the requirement to serve the notice, or notices on the neighbour.
Once the notices are served (whether correctly or not) the intention is shown, and the adjoining owner has no more rights to go to court with his disagreement but needs to follow the process laid down in The Act, first. In a way, The Act, also protects the building owner from litigation, whether spurious or not.
Now the disagreement may come about at any time, say:
(A) You have agreed in writing to the works as laid down in the notice or notices, but the works drag out causing a nuisance to you and your family or causing damages to your property, or the undertaken works are more than explained in the notices (but be careful here the Act applies to a limited number of works). Now, you need to put this across to your neighbour and if he disagrees and does not act on this, there is a dispute resolution path open to you in the form of Party Wall Surveyors.
(B) You do not understand what is involved and/or why, or simply decide that the work is illegal, or you do not like the proposal and form your dissent. In any case, you will need to appoint/engage/employ a surveyor to act on your behalf. The surveyors are never part of the disputes (they can create disputes, though, as is sometimes the case), you are.
SURVEYORS ARE ARBITRATORS
You are responsible for their fees and the costs that they generate but the Act gives the right to assign these costs to any party as the surveyor or surveyors see fit. This assignment is customary to the building owner initiating the works, although, conditions may arise where such is otherwise. Now, I would like to remind you, dear reader, that it is all based on the opinions of the surveyor or surveyors, there is no requirement for merit behind their decision.
Your options are henceforth as follows:
i) You can either agree to the Appointment of an Agreed Surveyor who will explain the ins and out and tell you whether you are right or wrong. He will put his decision in writing (called an Award). The agreed surveyor may be proposed by the building owner (a person who does the work), but your chosen surveyor may also be approached to act as such, by the building owner.
There are no minimum standards of engagement but for the ethereal requirement of impartiality. In essence, the agreed surveyor may well simply lay down the wording of the notice on a separate piece of paper, add his fees and issue this to you and the building owner. The Act provides that you cannot lay off such surveyor if you disagree with his decision and the only further recourse you may have is to the Court in 14 days’ time. Going to court you are acting outside of the Party Wall Act and all the costs that will ensue will be yours to cover, perhaps even a majority of the costs of the winning side.
ii) You may prefer to appoint your own surveyor. The procedures are similar to those already explained but there are more parties involved and hence the costs of procedures rise. When you appoint a surveyor, and the building owner appoints a surveyor such two surveyors agree on a selection of a third surveyor to arbiter any disputes the two surveyors may have. Any one of the appointed surveyors can call on the third surveyor to agree on the disagreement with him but also to determine the dispute as a judge with his own award. For all my career so far, I have not seen a third surveyor who would negate an occasion to make money and decided to simply join in with another surveyor to agree on the resolution (human nature, I suppose). When the Third Surveyor prefers to publish his award, the third surveyor will not publish his award unless paid, and he will assign his costs as well as the costs of other surveyors as he sees fit.
Interestingly, there is a judgement in the Small Court where the adjoining owner was made to pay the building owner surveyor fees as the Judge decided that the agreed surveyor route would suffice, the case of Amir Siddique v Kowaliw (2018).
Armed with all the knowledge of who, why and how, one may wonder how the surveyor can be paid as he has no rights against the building owner to whom the fees are allocated but the opposite owner does. The Civil Law seems to be ruthless and the only way to recover the fee when sides do not want to pay is through the courts.
Now, the appointed surveyor requires payment from the appointing owner who then in turn requires payment from the adjoining owner. When one of the parties does not want to pay the matter lands in Court. The path can be shorter if the appointing owner assigns his right to claim to the surveyor. This however does not come as part of The Act.
You can gather, dear reader, that the matters are fluid, subjective and may well still cost you even if you think otherwise.
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