A building owner has extensive rights under the party wall act including rights to entry but to exercise these rights they must serve notices, which are time limited, upon any affected adjoining owner at a set date prior to the intended works. The adjoining owner then has reciprocal rights and must consider their options. When a dispute arises both owners, utilising due diligence, must either appoint an agreed surveyor or appoint one Party Wall Surveyor each and in that case the first duty of the two surveyors is to select a third surveyor and if they can’t agree the Party Wall Act allows the Local Authority officer to make that appointment.
The first question a Building Owner or Adjoining owner confronts is what is a Party Wall Surveyor and how to find and appoint one; Party Wall Surveyors should be correctly qualified, understand, interpret and advise on law and must reflect on their practice which provides a further selection factor by viewing their blog or posts. Some Party Wall organisations consider any one can be a party wall surveyor and argue that a wall can be raised downwards or that the act can legalise trespass etc but Bruce offers satirical advice against such stances and why you should avoid inadequate Party Wall Surveyors. The surveyors should be expert in dispute resolution, risk analysis and the psychology of disputes.
An owner who appoints an inadequate party wall surveyor will cause the dispute to escalate, for example if a surveyor requires a checking engineer or makes requests etc. with inadequate qualification or quantification. Section 10 (6) and (7) of the act allows for dealing with and the removal of ineffective Party Wall Surveyor or surveyors who refuse to act effectively. A bad Party Wall Surveyor can be spotted by analysing their behaviour
Once validly appointed the agreed Surveyor or the two surveyors must visit site and determine what is a Party Wall and is it a Type B Party Wall, a Type A, a Party Structure, a Party Fence Wall or not a Party Wall at all? They then consider the impact of the Building Owner’s works on the Adjoining Owner and their property and take a schedule of conditions. They should then agree an award which allows the Building Owner to expeditiously proceed with their lawful works whilst fully recognising and protecting the interests of the Adjoining Owner.
The Party Wall Award settles the dispute and may include the fee of the surveyors and therefore allows the surveyors to recover fees and of course for owners to contest greedy Party Wall Surveyors who claim unreasonable fees. The adjoining owner may request security for expenses which can take many forms but notably by escrow and bond and payment for works done
If a Building Owner does not serve notices a prohibitory injunction should be sought.
The Party Wall Act is a statute; it was initially read pedantically and by reference to other statutes and old case law. However modern case law is more and more veering towards common sense interpretation and its spirit. The act does not interfere with easements or rights of light but legal principles, statutes, regulations, doctrines and law do apply ie estoppel, negligence, Consumer Protection, Misrepresentation, frustration but importantly Road Runner (case law) stated that the act suspends common law. The act has a long history, as can be better understood by viewing its chronology and the first Party Wall Surveyors can be traced back a millennium. Bruce has produced a guide for owners, surveyors and aspirant Party Wall Surveyors. There is currently one amendment to the act which allows for electronic communications and there is recent case law which expands considerably the methods available to serve notices etc.
There is a need for a new learned institute for Party Wall Surveyors which could be provided by the Institute of Architecture and Surveying of the Chartered Institute of Building