What is Party Wall Work?
The Party Wall etc. Act 1996 introduced a procedure for the resolution of disputes between owners of neighbouring properties, arising as a result of one owner’s intention to carry out works which would affect the party wall, involve the construction of a party wall or boundary wall at (or adjacent to) the line of junction between the two properties, or excavation within certain distances of a neighbour’s structure and to a lower depth than its foundations.
In order to settle such disputes, the surveyor (agreed surveyor where both parties concur in one person) or surveyors (where each party appoints their own surveyor) will resolve the dispute by making an award, which is legally binding on both parties.
The surveyor’s award
To increase the habitable living space, the owner of a property decided to convert the attic of the property, causing the removal of the first floor chimney breast in the process.Â The work was akin to that carried out by the owner of the adjoining property, and clearly came under the remit of the Party Wall Act.
The neighbourâ€™s work had been carried out without engagement of the Party Wall Act but they were not willing to reciprocate the courtesy when it came to the similar work being completed next door, thus forcing the property owner to serve a Party Wall notice.
The matter of the appointment of the adjoining ownerâ€™s surveyor resulted in acrimonious exchanges, mainly due to the property ownerâ€™s wish to appoint a joint surveyor. A joint surveyor would work on behalf of both parties, but the neighbourâ€™s refusal to agree to a joint surveyor necessitated the property owner appointing her own surveyor.
The work was completed, and an award issued for the owner to pay fees of Â£1,500 and surveyorâ€™s fees of Â£595. A further Â£180 was awarded to pay for the neighbourâ€™s surveyor.
Appeal to the court
The property owner felt that the fees were too high and appealed this aspect of the award, giving the court opportunity to issue guidance on the evidence required to challenge the reasonableness of fees and the steps expected when challenging quantum of fees for Party Wall surveyor work.
The court said it would expect:
- A party seeking to challenge to bring expert evidence to court and give the adjoining ownerâ€™s surveyor the opportunity to be heard on the issue.
- To be able to assess the â€˜reasonablenessâ€™ of a party wall surveyorâ€™s charges but, contrary to other professions, there is no clear guidance on this.
- To see an analysis of the relevance and reasonableness of time spent on each aspect of the work undertaken, documented by time sheets, documents, working and other relevant papers. This would include the application of a third party disclosure against the adjoining ownerâ€™s surveyor, to obtain his own documents.
Judge Bailey acknowledged that there might be circumstances under which the adjoining owner should pay part of his own surveyorâ€™s fees.
He said: “Given the sum at stake, and the cost of mounting an evidence-based challenge to the fees, the appellantâ€™s approach is understandable but it puts the court in an impossible position. The jurisdiction of the court under s.10(17) of the 1996 Act is plainly wide enough to vary that part of an award which covers the fees of the party wall surveyor. But the court has to act on evidence and give reasons for any decision.
“There is an additional complication where a party wall surveyorâ€™s fees are challenged by an appellant. The respondent to the appeal will often have no particular interest in the outcome of the challenge to the surveyorâ€™s fees. Accordingly, the party wall surveyor whose fees are being challenged may find that his interests are not being properly protected. Where a party wall award appeal includes a challenge to a surveyorâ€™s fees it is important that this is flagged up in the interim stages of the appeal. The surveyor concerned should then be given an opportunity to apply to be joined to the appeal as a second respondent so that he may take part in the appeal, be required to give disclosure where appropriate, and be permitted to adduce any evidence he wishes in support of his fees.”
On the subject of liability, the court noted provision in the Act that, except where there is specific provision to the contrary, ‘expenses of work under this Act shall be defrayed by the building owner’.Â This general provision comes with provisos, and the judge said: “First the fees in question must be reasonable, see s 10(13). The building owner need not pay the adjoining ownerâ€™s surveyorâ€™s fees where they are unreasonable in amount because, for example, the surveyor has sought to charge too high an hourly rate or has charged for unnecessary work, or has taken an unreasonable amount of time to do the work that he has done. Secondly, the building owner will not be required to pay the adjoining ownerâ€™s surveyorâ€™s costs when these have resulted from unreasonable conduct either on the part of the adjoining owner or the surveyor. The adjoining owner must act reasonably.”
The property owner argument was based on:
- the adjoining ownerâ€™s refusal to reciprocate the courtesy she had been previously afforded;
- the seeking of conditions on work that fell outside of the scope of the Act; and
- the opposition to the adjoining ownerâ€™s surveyor acting as a jointly instructed surveyor.
The property owner argued that the three points amounted to conduct that would justify the adjoining owner being responsible for all of the fees incurred.
The court was not persuaded on the first two points, but did consider it was unreasonable for the adjoining owner to refuse to allow the surveyor to act for both parties. On this point, the adjoining owner was ordered to pay the surveyorâ€™s fees of the building owner.
You can read the judgement onÂ Amir Siddique v Kowaliw (2018)Â here.