Bruce is a consultant and practicing Party Wall Surveyor & Building Surveyor.

He acts for the Building Owner carrying out the works, the affected Adjoining Owners, as the Agreed Party Wall Surveyor and the Party Wall Third Surveyor.

Bruce has evolved the combined Building Survey, Structural Survey & Home Survey as the ideal and optimum survey for all London properties.

Please text or email a brief description of the Party Wall Service you require for a fully comprehensive offer of professional service or call Bruce.

07927123469

bruce@partywallsurveyor.london

What is a Party Wall Surveyor, how to appoint them and the importance of due diligence

The most notable organisations which regulate Party Wall Surveyors are the Chartered Institute of Building (CIOB), CIBE, ISE, RICS, RIBA etc.  These Party Wall Surveyors can/should be trusted to be university educated and experienced, to act ethically and to meet the needs of the owners and the statute.  They can be recognised by their suffixes (letters after their name ie Bruce Spenser MSc MCIOB (Master of Science in Building Surveying and Member of the Chartered Institute of Building).

Section 20 of the act, some argue, allows anyone to be a party wall surveyor which is an argumentum Absurdum (think legal capacity and negligence etc).  The purpose of Section 20 is to ensure healthy competition, ethical behaviour and  fairness in the act’s interpretation.  If there was only one Party Wall Institute/organisation fees would escalate (monopoly pricing) as would the use of professionals  such as checking engineers etc (from unsavoury and unethical networks).  The institute would select their own third surveyors.  What would then exist would be a sluggish, smug, conceited, self-important, pompous, egoistic and circumscribed monopoly which would have no incentive or motivation to serve the public as it would be feasting on the public as it serves itself.

Bruce therefore fully supports the competition from other organisations ie FPWS, LPWA, PWA, IPWA, PWSA etc – however Bruce considers it is essential that these non-chartered professional bodies avoid the possibility of being seen to mislead the public by the use of Non-Privy council suffixes (which do not denote Chartered Status or a degree or higher education from a University) or overestate the ability, qualifications, experience etc of their members (marketing confusion);  This is vital as immediately  an owner appoints their surveyor they are responsible for that appointment (they have carried out due diligence in consumer law) and they are therefore responsible for all mishaps which arise from that appointment which can be very costly should the appointed surveyor’s negligent actions be recognised in a court action or delay the works or cause excessive fees.

Therefore when selecting your Party Wall Surveyor carry out due diligence

 

Should you inadvertantly appoint a person who is out of their depth please see, negligenceConsumer protection regulationsMisrepresentationQualifications etc below.

Case Law – The Party Wall Act came into being in 1996; however it stands on the shoulders of over a hundred years of Party Wall case law and statute.  Case law is the interpretation of statute by reference to precedent.  The case law maker, the modern judge is required not to immerse himself in pedentary but to look to the common sense meaning of the work, sentence, paragraph etc  (the plain meaning rule) if this is not clear the judge will next look at the meaing of the legislature.  It is very clear that the legislature and the courts intend that simple common sense should apply to the act and it be administered by reasonable people.  Some common case law is listed below:

Use the Party Wall Act – do not attempt to slyly circumnavigate it – Udal v Dutton 2007 – it is there to provide a mechanism by which agreements can be reached and disputes settled ideally without expensive, time consuming and stressful court action (minimimum of £15k) -“there are too many calamitous neighbour disputes in the Courts.Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. At attempt at mediation should be made right at the beginning of a dispute and certainly well before things turn nasty and become expensive. By time neighbours get to Court it is often far too late for the Court based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties or possibly both.The extreme acrimony between these neighbours is nothing new” – Lord Justice Murray – Bradford and Bradford v James and others – 2008

Correct Method of appeal against Party Wall Awards and decisions of Party Wall Surveyors – Zissis v Lukomski & Carter (2006) – Part 52 is the correct method of appeal

Noise, dust, dirt etc. whilst carrying out works subject to the Party Wall Act – The reasonableness of such – Andrea v Selfridge (1938) – Be reasonable – the author thinks of the doctrine of the reasonable man

Serving of Notices, by whom and who they should be served upon, what should be in the notice, when they notices should be served, time limits, separation of the good from the bad of a party wall Award, Validity of awards – this is spelt out within the act and there is much case law – also see email (electronic serving)

Common law liability stands- Louis v Sadiqi 1997 – If the act is not complied with

Duty to weather a party wall- Marchant V Capital (1983) – after demolition and also imposition of continual obligations.  Duty to prevent foreseable damage Rees v Skerrett 2001 – also contained within the 1996 Party Wall Act.  Duty to prevent foreseable damage (mitigate one’s loss) – Saunders v Williams 2002

Obligation imposed by party wall awards- Mason v Fulham (1910) do not carry on after the sale of a property

The Jurisdiction of the party Wall Surveyors are covered in much case law – notably Stone V Hastie (1903)

Legal Costs Incurred-Reeves v Blake covers the legal costs incurred and the Party Wall Surveyor’s ability or non-ability to award or adjudicate on them – very interesting this one

Compensation- Crowley v Rushmoore –

Usurping of common law rights by the Party Wall Statute – Louis V Sadiq – LJ Evans

Access is allowed under Section 8 – dont fight it – Davies and Sleep v Wise and Wise – 2006

Estoppel – this is the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement – Frances Holland School v Wassef 2001 – if Surveyors/owners proceed wrongly but proceed none the less they commit themselves to a course which can not be stopped by stating they should not have gone along the wrongfull journey they have. However if the preliminary procedures of the act are not followed (serving of notices, appointment of surveyors etc) and owners to not acquiesce to the procedure there is not jurisdiction to proceed – Rodrigues v Sokal 2008.

Estoppel is very important when determining the jurisdiction of surveyors;  Surveyors who are inadequate will often not realise the importance of following the letter of the law when establishing jurisdiction and consider themselves appointed and proceed with settling a dispute ex parte or with a fellow inadequate third surveyor (often appointed inadequately by a local council officer (see below)); their inadequacy leads to an ignorant attempt to usurp the legislation.  What the other surveyor and their appointed owner(s) must realise is that if they can be seen to consent and join the inadequate surveyor along his journey the doctrine of estoppel can give legitimacy to the inadequate surveyor and remove  rights and jurisdiction.

Easements (support, right to use, weather protection, light, drainage, repair ((servient and dominant)), that old gas flue) and rights of light shall not be interfered with by an award

Party Wall Surveyors are in a statutory role which is quasi judicial – Gyle-Thompson v Wall St (1974)

Once the process has started the surveyors must be reasonably paid but they don’t deserve a feast when a reasonable snack will suffice – Dust v Greenaway and MacNulty and of course Judge Bailey – however the fees of the adjoining owner’s surveyor (and disbursements) are the responsibility of the Adjoining Owner,  “it may well be that as a matter of convenience the Building Owner pays the Adjoining Owner’s Surveyors fees directly but that is not the legal position. The Claimant therefore must look to the Adjoining Owners who appointed him for payment of his fees and for the reasons stated he is not entitled to claim them from the Defendant.” Van Maanen v West Greenwich Devolpments 2009 (the debt must be assigned)

The act does not cover the fees of lawyers – Blake v Reeves

Kay v Lawrence – security for expenses – expenses are not compensatory damages whereby the Building Owner must  put an adjoining owner in a position they would have been before the damage occured but a choice to take financial compensation – If the expense is a certainty it can be managed by insurances, and surety bonds or of course by a payment into an escrow account.  However if it is not certain it may not exist.

You have the chance to comply and utilise the Party Wall Act – if you choose not to you cannot expect the law to retrospectively support you- ROADRUNNER – LJ CHADWICK

Checking Engineer – Currently Party Wall Surveyors are appointing members of the Institute of Structural Engineers to advise them because they consider the works are too complex to understand, they are not adequately insured, they are not qualified; in other words two professionals are being used – the question then arises would one of these professionals suffice and if so why are two being used?

 

Party Wall Surveyors are registered and assessed within the Faculty or Architecture and Surveying of the Chartered Institute of Building/Chartered Institute equivalents.  They are required to have ideally a master’s degree (or at least a lesser degree) in Building Surveying, expertise and experience to meet the needs of those affected by their practice and not to work outside of their expertise (not to be negligent).  The Institute of Structural Engineers also have members who are expert Party Wall Surveyors.

 

Appointing owners are expected to have carried out due diligence in the selection of their party wall surveyor and if they don’t, and their surveyor is negligent, they are financially responsible re fees. If they have been misled by their appointed party wall surveyor that surveyor is negligent and the appointing owner can claim back the fees through the courts.

 

A Chartered Professional will instantly recognise from the outset whether or not they require a checking engineer and if they do they should advise their potential appointing owner that they should appoint someone with the necessary competence.   If they don’t they know that the cost to the building owner is likely to be more and therefore that it will be an unreasonable expense under the act.  If they don’t they will build up relations with Checking Engineers which will seem unsavoury to onlookers.  If they delay the process because they refuse to move forward unless the Building Owner agrees the fees of their Checking engineer they are not carrying out their professional work in a timely manner.   Reasonable people looking in, or affected, may determine that this is antonymous with the integrity required of a professional, produces conflicts of interest and is inconsistent with their professional obligations.

 

Ask the person who wants your appointment:  Do you have a Masters degree in Building Surveying?  Are you Chartered? Are you an expert and experienced Party Wall Surveyor?  Do you require a checking engineer?

If they require a checking engineer do not appoint them as you could be liable for the fees of that checking engineer; instead appoint a Chartered Construction Professional who does not need a Checking Engineer.

 

How to contest the fees of Party Wall Surveyors (ie who require checking engineers etc.):

if there are two sides (ie basement conversion mid terrace) and one has asked for a checking engineer and one hasn’t the reasonable fee is the one who hasn’t, the hourly rate is a comparable which can be used if there is one side. 

Challenge the surveyor who calls for a checking engineer because they consider the work is complex and the other side does not.  Challenge what they mean by complex and they will give evidence of their lack of ability.

The checking engineer becomes the surveyor’s adviser and the surveyor has to rely on the advice as they do not have the ability to question it.   It follows that the surveyor hands over most if not all their jurisdiction to the Engineer and the surveyor is not entitled to fees.

Go over their emails line by line and challenge the unecessary guff and anything which is not directly related to the matter in hand – in the writer’s experience 50% of emails in such circumstances are unecessary.  The writers of such emails display a total lack of critical analytical thinking skills and are thus not fit for purpose.

Bring in case law – Andrew Dust v. Marioni, Greenaway and McNulty

“The complaint is that he made a three course banquet out of what should have been a snack and spent many more hours doing the work than was reasonably necessary”.

Encourage the Building Owner to have courage and not be bullied into paying exhorbitant fees – see bullying below – and indeed if the surveyor is a bully they must be challenged.

If the award is agreed publish it – the act does not require fees to be included in an award – let the banquet seeker make their case or take it to the third surveyor or the courts where they will (should) get their come uppance.

However I must warn appointing owners that it is common for the surveyor requiring advice to refuse to provide an adequate and thorough timesheet or full details of the appointment of the Checking Engineer and then to refuse to budge on their fees leaving the building owner with the following often futile options after the publishing of an award without fees:

  • Go to third surveyor – the fees of the third surveyor will be higher than the saving and will delay the project
  • Go to court – is it worth it for the sum involved?

This undoubtedly is a weakness of the act and falls foul of the law of economics.

 

Chronology of the Party Wall Act

1086 – Domesday Book – the Great Survey – ordered by William the Conqueror

1667 – London Building Act – introduction of Surveyors

1707 – 1709 London Building Acts

London Building Acts – modelled throughout country

1844 – Metropolitan Building Act

1854 – Common Law Procedures – the three surveyor tribunal

1855 – Metropolitan Building Act – definition and rights of owners

1858 – Public Health Act

1858 – Local Government Act – Deposit of Plans and Drawings

1863 – Cowen v Phillips – Adjoining Owner once contracted to purchase

1870 – Thompson v Hill – definition of adjoining owner

1873 – Weston v Arnold – Ousting is not on

1873 – Watson v Arnold – the type B party wall

1875 – Public Health act – DPCs, the structure of buildings, ensuring stability and prevention of fires, the drainage and provision of air space around buildings, to ensure health considerations Model By Laws consolidate Building Control

1878 – Bank of S America v Stokes – Suspension of common law rights

1879 – Knight v Pursell – Rights

1880 – Watson v Gray – The four definitions of the party wall

1883 – Hughes v Percival – Reciprocal duties – duty of care, duty to avoid nuisance, duty to minimise impact, a supervised workforce, expeditious undertaking,

1890 – Williams v Ball – the type a Party Wall

1894 – London Building Act

1905 – Model Bye Laws extended by parliament

1907 – Bennett v Harrods – The Party Wall Award and its construction

1908 – Jones v Pritchard – use of flue passing through AOs property

1915 – Hobbs etc. v Grover – sufficiency of party wall notices

1917 – Selby v Whitebread – the party wall surveyors are charged with facilitating the building owner’s rights and safeguarding the interests of the building owner via Award and party wall surveys aka schedule of conditions

1917 – Selby v Whitebread – addendum awards

1925 – Law of Property Act – severed party walls vertically, fabric and construction rights

1925 – Public Health Act

1936 – Public Health Act – British Standards as compliance indicator, Singe Model – voluntary (adoptive) not mandatory

1930 – London Building Act Party IX – The first party wall act

1939 – London Building Act Part V – contains The amended party wall act

1940 – Bond v Nottingham – Easements but with no obligation to maintain

1945 – Water Act

1959 – Rights of light

1959 – Town and country planning

1961 – Public Health Act

1965/1966 – Building Regulations – mandatory (paid out of rates) – Repealed local acts and gave power to minister to make building regs

1983 – Marchant v Capital – A properly constituted party wall tribunal’s award will not be interfered with by the courts

1984 – The Building Act – consolidated

1993 – Lehmann v Herman – all owners must serve notices

1996 – Party Wall Act – the suspension of common law rights

1997 Louis v Sadiq – Lawful works avoid liabilities

2000 etc. – Building Regulations

2001 – Rees v Skerett – weathering2001 – Gyle Thompson v Wall St Properties – legal constitution of tribunal (the two surveyors)2010 – Kaye V Lawrence – don’t place your trust in thespians bearing gifts

2011 – Jones v Kannev – Don’t become a party wall surveyor unless you know what you are doing

Electronic Communications – The Party Wall etc. Act 1996 (Electronic Communications) Order 2016 amends Section 15 and allows with the permission of the individual owners the serving of documents by electronic means. This will reduce the cost to the Building Owner and should be encouraged. Add the following to all Letters of appointment, “I am content for the electronic transmission of notices and documents under the Party Wall etc. Act 1996”.  Surely it is becoming more and more unreasonable for owners not to use electronic communications and totally absurd and bullying for a surveyor.  In Knight v Goulandris [2018] EWCA Civ 237, the Court of Appeal held that the list of methods by which service may be effected in section 15 of the Party Wall etc. Act 1996 (PWA 1996) was permissive rather than exhaustive, so other methods of service were acceptable – however in may be sensible, to keep the peace, just to print off a couple of notices to an obstructive or bullying surveyor.

 

Guide to the Party Wall Act

New Build on line of Junction when not already built upon:

Recommended

WORKS TO OR AFFECTING PARTY WALLS/PARTY STRUCTURES

Recommended

Adjacent excavation and construction

Recommended

Rights

Rights of entry.

Easements

Resolution of disputes

Expenses

Offences.

Exceptions

Interpretations

Adjoining  Owner

Building Owner

Foundation

Owner

Party Fence Wall

Party Structure

Part Wall a

Party Wall b

Special foundations

Surveyor

Recommended

Introduction

This is a brief guide to the party wall act by Bruce Spenser MSc MCIOB intended for owners, students and those aspiring to be Party Wall Surveyors – It is not intended to be relied upon in a legal context and should not be.

The Party Wall Act is a reflection of the great legal system we have, its history, the way it evolves,  the rights inherent and the responsibilities that come with those rights – in a civilised country we must not just tolerate the rights of others we must respect those rights and uphold them.

New Build on line of Junction when not already built upon:

Serve Section 1 notices one month before you wish to build a garden wall or party wall

If you receive a Section 1 Notice you may agree to the building of the wall in writing or not and if not the wall cannot be built but the foundations can be placed below your land.

If you agree to the build it will be positioned as both owners agree and the person who built the wall (building owner) may charge the affected owner (adjoining owner) a reasonable sum if he uses the wall.

The building owner will be responsible for any damages his work causes.

The act states when and how a dispute under the act and that it should be settled as per S10 – see below.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB etc) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB etc) – ensure you carry out due dilligence

WORKS TO OR AFFECTING PARTY WALLS/PARTY STRUCTURES

Subject to serving a valid notice on the adjoining owner two months before the building owner may carry out works which affect a party wall i.e.

·        Underpin, thicken, raise, make good, repair, demolish, rebuild, cut into or away from etc.

The building owner will be required to reasonably protect the use of the adjoining owner and will be responsible for any damages his work causes

The act allows that two owners may agree works between them and for the adjoining owner to serve counter notices etc.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB etc) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB etc) – ensure you carry out due dilligence.

Adjacent excavation and construction

If the building owner wishes to carry out excavations which may affect the adjoining owner’s property (as specified within the act) he must serve valid notices.

The adjoining owner has rights to protect his property.

The building owner is responsible for any damages his works cause.

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB etc) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB etc) – ensure you carry out due dilligence.

Rights

The act, very importantly, give rights to both owners which are subject to responsibilites:

Responsibilites – the owner wishing to exercise the rights:

·        must serve the appropriate valid notice in order to excercise the rights afforded by the act – these right suspend common law

·        must not cause unnecessary inconvenience

·        must compensate for damage and loss

·        must protect the adjoining owner’s property

·        requires the permission of the adjoining owner to place reinforced foundations on his land

·        must comply with statutory requirements

·        must comply with the drawings etc. unless agreed otherwise

·        must comply with the requirements of the act

Rights of entry.  

      Subject to serving a valid notice a building owner has rights of entry:

·        May remove furniture and fittings etc.

·        May break in if accompanied by a constable

·        Emergency access rights

Both surveyors have rights of entry as per the act subject to serving notices

Easements

The act does not interfere with rights of light, easements or third party rights

Resolution of disputes

Where a dispute arises following the serving of notices or has deemed to have arisen:

·        The owners shall appoint an agreed surveyor or one surveyor each

The two surveyors must then appoint a third surveyor

The surveyors will then settle the matter with an award as per Section 10 of the act.

 The award may determine:

·        the right to execute any work;

·        the time and manner of executing any work; and

·        any other matter arising out of or incidental to the dispute including the costs of making the award

·        Costs

The award has to be served on the owners and may be served, with the owner’s permission, electronically

The award is conclusive unless successfully challenged in a county court within fourteen days.

Expenses

Expenses are:

·        the responsibility of the Building Owner

·        if disputed settled by the award.

·        Shared if allowed by the act

Offences.

The act allows fines for various refusals by owners

Exceptions

Various Temples and the Crown etc.

Interpretations

Adjoining Owner – The affected owner as per the act

Building Owner – owner desirous of exercising rights

Foundation – solid ground or artificially formed support

Owner

·        Recipient of rent or profits

·        In possession of land (not mortgagee)

·        Tenant from year to year

·        Tenant at will

·        Purchaser of an interest in land

Party Fence Wall – garden wall on line of boundary

Party Structure – Party Wall, floor, wall or other partition which separates flats etc.

Part Wall a – Wall which separates buildings and stand on land of different owners.

Party Wall b – not as a above but still separates buildings

Special foundations – reinforced foundations

Surveyor – see What is a Party Wall Surveyor, how to select one and the importance of due dilligence

Recommended that the Building Owner appoints a Chartered construction professional (MCIOB etc) to serve notices and that both owners appoint the surveyor as the agreed surveyor or the Adjoining Owner appoints their own Chartered Construction professional (MCIOB etc), carry out due dilligence

 

Injunctions – If works are started which should have been the subject of a party wall notice the adjoining owner may consider an injunction whilst the Building Owner correctly serves notices.

You should contact a lawyer – you are on very strong ground (unlike your party wall).  The case of Udal v Dutton 2007 fully supports an injunction to stop the works pending following the requirements of the act.  You will need to demonstrate three things:

·      that there is a serious issue to be tried

·      that the balance of convenience favours the grant of an injunction

·      that damages would not be an adequate remedy

In Udal v Dutton it was decided that tresspass and wrongful interference with property is a serious issue (and that this was sly destruction)

the protection of the remainder of the wall and to replace on a temporary basis that part of the wall which had been wrongfully demolished is a balance of convenience

Damages would be inadequate as a householder who sees part of their property destroyed without consent is more concerned to preserve their property rights rather than secure damages

Relevant Case Law:

Heathcote v doal 2017

Histed v prosoerity developments 2013

Udal v dutton 2007

 

Notices – Valid Party Wall Notices must be served by the person who wishes to exercise rights under the act (see rights)

You have a number of options when receiving served notices:  to do nothing, to agree to the building owner’s party wall surveyor as the agreed surveyor or to appoint their own Party Wall Surveyor. If they appoint their own party wall surveyor, or if the Building Owner exercise the legal option available to appoint a party wall surveyor on their behalf, there will be two party wall surveyors – these two party wall surveyor should primarily check each other’s credential and authority to act and then should immediately agree a third surveyor.

Party Wall Award – The Party Wall Award is a legal document will be drawn up and agreed by the two Surveyors or the agreed surveyor or any two of them (this includes the third surveyor) which will determine how the works will be carried out.

Payments for works done – If you have raised your parapets for a loft extension/built a Party Wall  and the adjoining owner wants to enclose upon the wall you can claim payment for its use.

Raising Downwards

It is illiterate to state, “a Party Wall (or indeed any other wall) can be raised downwards”, and therefore it follows, non-sensical, absurd, counter-intuitive, irrational, un-educated and oxy-moronic which is why of course the Party Wall Act does not allow something  which is not possible. 

The following nonsense poem is dedicated to the “raising downers”,

 “There was an unfortunate, appointed Party Wall Surveyor, Who was convinced they were cleverer than they were, they read the party wall act poorly, without knowledge of English history and stated, ‘raised was the equal of razed surely!’”

·        Raising downwards is a contradiction in terms; you can only raise upwards.

·        Previous case law which has no relevance to the Party Wall Act should not be relied upon.

·        The Party Wall Act allows for underpinning and raising a Party Wall

·        Section 7(4) requires the permission of the Adjoining Owner for special foundations

Rights of Adjoining Owners -All statutory, regulatory and common law rights which are not suspended by the act and all rights of the Building Owner if they wish to exercise them.

Rights of Building Owners

Section 1 Rights

(a) build a party wall or party fence wall on the line of junction

(b) place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.

Section 2 Rights

(a)  to underpin, thicken or raise

(b)  to make good, repair, or demolish and rebuild

 (c) to demolish a partition which separates buildings

(d)  to demolish the  whole  or  part  of  buildings connected by arches or structures over public ways or over passages

(e)  to demolish and re-build a party structure which is of insufficient strength or height

(f)   to cut into a party structure for any purpose

(g)  to cut away any footing or any projecting chimney breast, jamb or flue, or other projection

(h)  to cut away or demolish parts of any overhanging wall or building

(j)   to cut into the wall to insert weatherproofing

(k)  any other necessary works

(l)   to raise, demolish and re-build a party fence wall, or to raise such a wall for use as a party wall, and to demolish a party

(m) reduce, demolish and rebuild, a party wall or party fence wall to stipulated heights

(n) To expose a party wall or party structure hitherto enclosed subject to providing adequate weathering.

Section 6 Rights

(a)  Underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner as far as may be necessary.

(b) Excavate below the Adjoining Owner’s foundations within 3m or 6m

These rights are conditional and should not be exercised without exactly following the requirements of the act.  Lay people should not exercise any of these rights unless via a correctly appointed, qualified and experienced Party Wall Surveyor.

Rights of Entry

Contents

Rights of entry Under the Party Wall Act

Who has rights of entry

Who is a Building Owner Under the Act?

In Practice

When Notices have been served

When Notices have not been served

Who has rights of entry

Road Runner LORD JUSTICE CHADWICK – a surveyor appointed under section 10 of the Act has the opportunity and the right to enter upon the premises of both the building owner and the adjoining owner “for the purposes of carrying out the object for which he is appointed or selected” – it is argued that this only applies to the surveyor appointed by the person carrying out the works.  It is further argued that the person carrying out the works is the Building Owner.  These arguments are both incorrect; 

 

Who is a Building Owner Under the Act?

Section 21 of the act interprets building owner”; “means an owner of land who is desirous of exercising rights under this Act”: Therefore if the adjoining owner wishes to exercise a Section 8 Right of entry they are a Building Owner under the act.

In Practice
When Notices have been served
If a dispute has arisen and works are suspected of commencing (i.e. underpinning) and no award is in place the adjoining owner can serve notice of entry.
When Notices have not been served
If notices have not been served and it is suspected that works subject to the act are being carried out (i.e. underpinning) and the adjoining owner appoints a surveyor who calls upon the Building Owner to appoint a surveyor a dispute is deemed to have arisen. 
The rights then extend to:

 

8 (1)A building owner, his servants, agents and workmen may during usual working hours enter and remain on any land or premises for the purpose of executing any work in pursuance of this Act and may remove any furniture or fittings or take any other action necessary for that purpose.

8 (2)If the premises are closed, the building owner, his agents and workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises.

Schedule of Conditions – Each adjoining Owner’s buildings should be surveyed and a professional and thorough schedule of conditions should be produced. This ensures that there is a record of the Adjoining Owner’s properties before the works affecting the Party Walls proceed

Security for Expenses – The act allows for Security for expenses before the works proceed – the sum will be paid into an account and not released without the agreement of the surveyor(s)

Third Surveyor – If two surveyors are appointed they must agree a third surveyor who can then be called upon to independently settle the dispute or settle the dispute with either of the two surveyors.

 

First Party Wall Surveyors

The 1666 act for the re-building of London was the first Party Wall Act and determined how Party Walls and Piers should be built.  It specifically  required Party Wall surveyors to take an oath to carry out their duties as required by the authorities and that they be, “discreet and intelligent in the art of Building and to survey and supervise regulations and statutes and to be lawful” 

Those Party Wall Surveyors are now contained within Chartered Institutes ie Faculty of Architecture and Surveying of the Chartered Institute of Building

 

Recovery of Fees

How should a Party Wall Surveyor, go about recovering validly awarded fees which have not been paid?  I would expect the MScs amongst us to reach for Dunn’s law guides, Civil Litigation, Be Civil and expend a considerable number of hours working out how best to proceed.  However there is a better way – Go to Nick Isaac’s –  http://www.boundariesbook.co.uk/?product=diy-guide-to-enforcing-payments-due-under-party-wall-awards – Nick also includes a pre-protocol letter which will professionally and non-antagonistically encourage the payment of fees.  You can also download a pre-action protocol for debt claims which include the Information sheet and reply form and Financial statement here

 

 

The psychology of disputes and methods of resolution and the difference between disputes, bullying and harassment – Bruce Spenser MSc MCIOB ACIArb

From a psychological standpoint a dispute (a disagreement) must exist in two minds.  The greek prefix di means two, twice etc.  Spute from the old English to discuss

 There must be a commonality between those two minds ie:

 ·         Location

·         Property

·         Ownership

·         Employment or Profession 

There must be knowledge of the dispute by both minds.  A dispute does not exist if a victim is being bullied or harassed – see below.

Once knowledge exists of the dispute both minds (parties) are empowered. 

This empowerment can be stressful if it is accompanied by uncertainty. 

Stress generated can be exacerbated by a parties reaction to stress caused by for example: 

·   Current emotional condition

·   Nurtured emotional condition

·   Natural emotional condition 

The stress generated can be used by one party to increase their power to the detriment of the other. 

The methods available to settle disputes are indicative of societies perception of the hierarchy of disputes ie: 

·  Statutory

o     Party Wall Surveyor

o     Arbitrator

o     Mediator

o     Conciliator

o     Early neutral evaluator

·         Police

·         Council

·         Authority

·        Willing parties acting reasonably without coercion

 

 Bullying and Harassment 

“Bullying is a compulsive need to displace aggression and is achieved by the expression of inadequacy (social, personal, interpersonal, behavioural, professional) by projection of that inadequacy onto others through control and subjugation (criticism, exclusion, isolation etc). Bullying is sustained by abdication of responsibility (denial, counter-accusation, pretence of victimhood) and perpetuated by a climate of fear, ignorance, indifference, silence, denial, disbelief, deception, evasion of accountability, tolerance and reward (eg promotion) for the bully.”

Tim Field, 1999

Bullies aim to control, discredit, isolate and eliminate their target, they have no integrity, are vindictive, aggressive, demanding and regularly violate other’s boundaries and rights – their “requests” always have a negative consequence.  They intend to cause the victim harm, undermine them, damage them socially, emotionally, psychologically and sometimes physically.  This is all the Bully’s choice by the use of unwarranted criticism and threats.

 

The major triggers for bullying come from the bully’s own sense of inadequacy, they feel envious and threatened by competent, popular people with integrity.  The bully will project their own incompetence and inadequacy onto the target by gossip and the gossip mongers will unwittingly or wittingly be the bully’s accomplice if they are vulnerable,  gullible or spiteful.

 

Their victim is singled out because they are superior in every way to the bully: They are:

 

·        Morally Courageous

·        Strong

·        Highly developed empathy

·        Sensitivity for others

·        High degree of perceptiveness

·        high moral values

·        Well-developed integrity

·        Strong sense of fair play and reasonableness

·        A low propensity to violence

·        Reluctance to pursue a grievance, disciplinary or legal action

·        A strong forgiving streak

·        Mature understanding of the need to resolve conflict with dialogue

·        Self-Reliant

·        Individualistic

·        Non-group member

the bully confuses the attributes as weaknesses not the strengths they are

Bullying is by Scapegoating,  projection, vilification,  retaliation and grooming bystanders:

 

Scapegoating is moving blame, responsibility,  angry feelings, undealt with pain and accusations from themselves to others.

 

To distract and divert attention from themselves the bully Projects their own inadequacies, shortcomings, behaviours, anger, spite and self-deception on to the target – the projector does this by blame, criticism and allegation.  Their attack on the target actually mirrors who they are and gives an awareness of the bully’s own misdemeanours.

 

Vilification is the attempt to mask the bullying by the bully accusing the target of being the bully  – the aim is to put the target on the defensive (feigning victimhood).

The bully grooms bystanders (and the target) with lies and misinformation and encourages them to further disseminate by gossip.  The most easily groomed by gossip are those who lack critical analytical thinking skills.

 

A bully will focus and attempt to exercise power over and on an individual.  There is no commonality between those minds.  The determination of whether or not a person is being bullied or harassed is the victim’s perception of being caused alarm, distress or intimidation.  Even if the bully claims they did not mean to alarm, distress or intimidate the Equality Act applies on the way the victim feels.

 

Bullying is part of group dynamics – a group will demand similar behaviour or will ostracise or bully members or those attempting to join, the group members are willing or unwilling collaborators (you become who you associate with) – conversely a team will not act in such a manner.  This type of bullying was first studied in the Hawthorne experiments in the early 20th century and it applies equally to public places, clubs, institutions, work, social, familly and neighborly situations.

 

A Building Owner (or their Surveyor) who is being bullied by an Adjoining Owner’s appointed surveyor to the extent that the required award is impossible unless they submit to the unreasonable demands of the bullying surveyor should sideline the surveyor by utilising the act to go to the third surveyor.  What they should be aware of is that the bully will attempt to villify, project etc onto the other surveyor and groom the third surveyor into believing they are the inocent party;  this emphasises the importance of Third Surveyor selection;  the selected third surveyor must be an experienced master of critical analytical thinking and dispute resolution.  A bullying Party Wall Surveyor should immediately be reported to their Institute for disciplinary action.

 

In work, clubs, institutions etc bullying will fall foul of statutes and could also be criminal and authority figures should immediately be involved.

 

Neighbourly bullying is common in small and remote communities and is generally driven by group dynamics and fuelled by the grooming by gossip of those less able to critically analytically think.  The bully is driven by loneliness, depression, undealt with loss, jealousy, hate, supressed and undealt with anger  etc.  The bully’s undealt with passions will be fixated upon the target which will lead to a form of paranoia and mental disturbance within the bully.  The target will become aware of the bully’s obsession with them when the bully acts outwardly by for example invading their space, vengeful, spiteful and other actions against them.  The target should avoid a natural temptation to retaliate as this will only empower the bully and alter the dynamics from bully and victim into a dispute – The target should retain the upper ground at all times by being polite and understanding to and of the bully indeed the greatest danger the target faces is to be provoked by the bully because of the withholding of the natural instinct to retaliate.  If the bully breaks statute or common law etc it is essential that the police are informed who have the power to treat the matter as a hate crime.  They can also take the matter to court. 

 

It must also be recognised that pubs, restaurants and cafes are for locals (outside season) and so if a person is subject to bullying in such public places it may be the best option to just stop going to them.

 

Arrested Development Bully:   Children play, they experiment with structures and boundaries;  This can include spitefull, hateful and violent behaviour.  (In extremis when removed from adult supervision their behaviour can  become pathological).  If a child is subject to bullying from within such a situation (Boarding School, Child retention institutions, inadequate family etc), the child can be so disturbed by the situation that their psychological development becomes partly arrested.  The deep seated pain within the child becomes the anger of the adult bully (and in extremes the sociopath and the psychopath; The most devious type of bully;  they have lost the ability of empathy and sympathy and care purely for themselves).  From the behaviour of the adult bully can be extrapolated the age of the child when the disturbance happened and the understanding required is of this child within not the adult. 

 

 

Qualifications

Post Nominal Suffixes – The Privy council regulates Royal Charters for Professional Institutes who can confer Professional memberships designated by suffixes i.e. MCIOB.. These memberships are academically benchmarked to a degree/honour degree and in the case of a Fellow equate to an honour/Master degree.

Royal Charters

Degree equivalents 

The Privy Council regulates Universities (higher education) which can confer degrees designated by suffixes i.e. MSc, BSc 

The term Chartered Construction Professional is applied to a member of a Chartered Institute (i.e. MCIOB etc)

The government list professional organisations approved for tax relief (listed organisations) 

Listed organisation members are engaged in a specified activity as their main paid occupation; the members are also colloquially known as professionals.  Some listed organisations give suffixes to their members and encourage them to use them.  Some of the listed organisation members may not have a degree, or indeed any higher education qualifications and their experience may be limited.  They may not have an adequate complaint’s procedure and may be inadequately regulated.

So how, when selecting and appointing a Party Wall Surveyor can you determine if your Party Wall Surveyor is Chartered, has a degree (or both) or is not Chartered and does not have a degree?  The author considers that the responsibility lies with the listed organisations and their members – they should state clearly that the suffixes used by their members do not donate Chartered Status or a degree – the problem is then solved.

Ofqual regulate qualifications and awarding bodies

There are 8 levels of qualifications 

Regulated Qualifications and their level can be searched 

Registered qualifications are offered by registered awarding bodies

 

 

Level

Description

Exemplar qualification

Suffix following Professional review

1

Expected minimum school attainment

 

2

Above average school minimum attainment

 

3

A level – above average school attainment

ABBE Level 3 Award in Understanding the Party Wall etc. Act 1996

4

Higher education

CIOB Level 4 Diploma in Construction Site Management

 

NVQ level 4 + 5 years experience

ACIOB

 

 

 

LCGI

5

Degree level

BSc

MCIOB,  MRICS

6

Degree with honours

BSc (hons)

MCIOB,  MRICS

FCIOB, FRICS

7

Master’s degree

MSc

FCIOB,  FRICS

8

PhD – Doctorate

PHd

 

A problem with inadequate Party Wall Surveyors

 If a complex situation arises, for example defining a dispute with no case law history, a wrongly informed decision could cause major financial, stress and time difficulties to appointing owners.  Two experienced Chartered Construction Professionals with subject degrees can be relied upon to advise and determine ethically, experientially, fairly, impartially and knowledgeably and the advice and determinations are backed up by their professional complaints procedure and their professional indemnity insurance.  However if one surveyor is inadequately qualified the other surveyor can not rely upon their judgement or ability.  Once a dispute arises that is not a problem as long as the third surveyor is a Chartered Construction Professional.  However the problem arises when determining if a dispute has arisen and whether the surveyors have jurisdiction.  In this scenario Bruce would advise Surveyors not to rely on an inadequately qualified surveyor but insist that appropriate notices are served.  This is vital as the owners will be considered to have carried out due dilligence and therefore will be responsible for costs and fees which arise from example court action.

 

Misrepresentation is inducing a consumer to enter into a contract by making a statement of fact (not opinion) before a contract is made. There are 3 types, Fraudulent, Negligent and Innocent and the remedies are cancelation of the contract and damages.

So if we take the scenario that an owner appoints a person who advises them, “anyone can be a party wall surveyor”, and their appointed party wall surveyor fails, because they are unable, to meet the degree of prudence and caution required of an individual who is under a duty of care (the obvious comparable benchmark is a surveyor registered within the Faculty of Architecture and Surveying of the CIOB or other Chartered Institutes) can action be taken against this individual?

The Party Wall Act suspends common law (Roadrunner – LJ Chadwick [2004]) and an award will not be interfered with by the courts ((Section 10 (16)) however The Misrepresentation Act allows, as above, after a contract has been performed/where the misrepresentation has become a term of the contract (implicit/explicit?), and therefore this is a possible course of redress against negligent Party Wall Surveyors. See also previous posts.

 

Consumer Protection from unfair trading Regulations protect consumers from traders who fail to meet standards of professional diligence, provide misleading information about themselves, utilise marketing confusion and aggressive practices (possibly the practice known as coffin chasing?)

 Local Authority Trading Standards Services (TSS) and the Office of Fair Trading (OFT) have a duty to enforce the CPRs, using the “most appropriate means”.

Negligence is failing to meet the degree of prudence and caution required of an individual who is under a duty of care (the obvious comparable benchmark is a surveyor registered within the Faculty of Architecture and Surveying of the CIOB or other Chartered Institutes)

 

Third Surveyor Selection – Local Authority Officer

 

If an officer of a council selects a Third Surveyor and they have no jurisdiction so to do that selection is invalid and if the two surveyors proceed they have no jurisdiction.

Section 10 (1) (b) of the act requires the two appointed surveyors to forthwith select a third surveyor once they are validly appointed.  Section 10 (8) allows the relevant appointing officer to appoint the third surveyor if one of the surveyors refuses to select a third surveyor or neglects so to do following a request.

Section 101 of the Local Government Act 1972 allows for the discharge of functions by Local Authorities.  Obviously the arrangements for delegation must be clear, lawful and valid.  Therefore the first duty of a surveyor who is considering approaching a local council officer is to ensure the person they approach has the necessary jurisdiction.   They should check the Council’s scheme of delegation and that what is being relied upon is currently in force.  If they don’t they are failing to meet the degree of prudence and caution required of an individual who is under a duty of care (the obvious comparable benchmark is a surveyor registered within the Faculty of Architecture and Surveying of the CIOB or other Chartered Institutes)

 

Satirical advice to aspirant Party Wall Surveyors – The young, uneducated and inexperienced can be led astray by those seemingly offering easy routes to degree and Chartered status; Join us they say and you can utilise Chartered and Degree post nominal letters after your name “Anyone can be a Party Wall Surveyor”! 

But beware when you enter and join this make-believe world of the fantasists; the lack of qualitative and quantitative reasoning will be exposed as worthless opinions as you attempt to put this nonsensical theory into practice. As you skim the surface of reality and remove abstract layers which seem to serve your current situation your positions and confusions will become increasingly absurd.

As you sink deeper into this fairy tale land you may even reach a Don Quixote advanced stage when you can grandly hypothesise that a wall, as allowed by the act, can not only be raised upwards but of course can be raised downwards and with this pronouncement you will be elevated to a Fellow and possibly mounted on your very own Rocinante!

And, of course, once you have succumbed to using one set of Non Privy Council post nominal letters you will find it easier to use more and your ethics may be irretrievably harmed.

However, I would strongly recommend that you take a CIOB  etc degree and then follow their routes to Chartered Status – it may take a while longer but the foundations, special or not, will ensure your stability.

 

(1) The author is expressing views and engaging in public debate in a satirical manner as he considers that non Chartered Construction Professional should not practice as Party Wall Surveyors”

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