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The unique role of a party wall surveyor

27 April 2017

Property litigation expert, Helena Davies, writes for Estates Gazette.

This article was originally written for the Estates Gazette

The Party Wall etc. Act 1996 is, to many, a curious piece of legislation. It is designed to authorise and regulate building works that would otherwise incur liabilities at common law, and party wall surveyors are therefore appointed to produce awards which govern relevant building works. Such awards have been described as “sui generis”, and, “more in the nature of an expert determination” than an arbitration award.

Party wall surveyors themselves have also been described as being, “in a quasi-judicial position with statutory powers and responsibilities...the steps laid down by the Act should be scrupulously followed throughout, and short cuts are not desirable.” The Court of Appeal has very recently confirmed this view of party wall surveyors being in a “quasi-judicial position”.

Section 10 – Appointment and Removal

Given the fact that the Act’s procedures must be scrupulously followed, there have been a number of recent cases relating to the validity of purported appointments and resignations of party wall surveyors, which cases have had the result of leaving homeowners liable for unexpected and disproportionate costs of complicated legal proceedings over technicalities nothing to do with their building work.

Removal of PW Surveyor

It is generally accepted that a Party Wall Surveyor cannot simply be sacked, however much his appointing owner does not get on with him.

In an unreported case in 2016 "a most extraordinary dispute raged" (according to HH Judge Bailey) even though barely any notifiable works were ultimately undertaken. Party A commenced works without serving party wall notices. The Adjoining Owners obtained an injunction in response to which statutory notices were served. Party A then decided not to do any further party wall works, perhaps realising they had bitten off more than they could chew. They tried to extricate themselves from the process as part of which their party wall surveyor purported to stand down as follows: "for cost reasons my appointing owners have asked me to resign as they wish to represent themselves….please take this letter as formal resignation….I deem myself incapable of acting…”

Mr Antino, appointed by the Adjoining Owner, responded to this describing the party wall surveyor's conduct as "bizarre" and "unprofessional". He said; "He should know that an owner cannot request the surveyor's resignation" and pointed to the following provisions of the PWA:

Section 10(2)

  • All appointments and selections made under this section shall be in writing and shall not be rescinded by either party

Section 10(5)

  • If, before the dispute is settled, a surveyor appointed ... ... by a party to the dispute dies, or becomes or deems himself incapable of acting, the party who appointed him may appoint another surveyor in his place with the same power and authority

The judge decided however that a surveyor who no longer wishes to continue in the role can resign by deeming himself incapable of acting on whatever grounds seem appropriate to him. He said that even if he was wrong on that, it is not for the other surveyors to police their colleague's deemed incapacity. As such the party wall surveyor ceased to be appointed on his resignation, a decision which has been considered quite controversial amongst those who consider the appointment quasi sacred.

Appointment of Replacement PWS

As a declaration of incapacity may become more common now, the question of what happens following such a resignation is likely to come into focus. An unreported case in 2015 considered whether Section 10(4) of the Act could be used by one party wall surveyor to appoint a replacement surveyor for the other owner after the first one has resigned.

Section 10(4) states that if either party to the dispute:
(a) refuses to appoint a surveyor under subsection (1)(b), or (b) neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him, the other party may make the appointment on his behalf.

In this case, the Building Owner’s surveyor declared himself incapable of acting, and the Building Owner delayed in appointing a replacement. The Adjoining Owner’s appointed surveyor purported to utilise section.10(4) and appointed a replacement, with whom he then made an Award. The question before the Court was one of jurisdiction:

– was the replacement surveyor properly appointed?
– was the Award valid?

The judge decided that Section 10(4) is only for initial appointments, such that the remaining surveyor should have just worked with the Third Surveyor instead of making another appointment. Becoming a little morbid, he accepted "it is possible, the ingenuity of man is such, that events might be hypothesised under which the parties would find themselves unable to proceed with the dispute resolution….all three surveyors might die or become incapable , there might for instance be a tragic accident when all three surveyors were on site together…" but thought it better to leave that hypothetical situation for another day.

Changes of Mind

Recent case law serves to warn parties and surveyors that there is very little room (if any) in this quirky legislation to change one's mind after the process has commenced.

In an unreported case in 2015, another adjoining owner’s party wall surveyor deemed himself incapable of acting due to his integrity being questioned, whilst the Building Owner tried to pull out of the process completely. His solicitor wrote as follows: "My clients are not prepared to give the undertakings you seek, nor serve a new notice, nor appoint a party wall surveyor", which was decided sufficient to trigger S.10(4)(b), allowing the Adjoining Owner to appoint a surveyor on behalf of the Building Owners. In the Judgment, it is made clear that there is no provision in the Act for withdrawing a notice once it has been served, or unilaterally discontinuing a dispute that has arisen, which would need consent of both parties to stop the dispute continuing.

In a very recent unreported case, the two appointed surveyors agreed in writing on a Third Surveyor (Alistair Redler) informing the parties of this selection. However, they then changed their minds at the time they put the Award together, which named Philip Antino as the third surveyor instead. Unfortunately, the Adjoining Owners wrote direct to Mr Antino asking him to make an Award about an access dispute, upon which he launched into an extensive exercise directing the two surveyors "in fairly peremptory terms", and despite correspondence explaining to him that the matter had already been determined in an Award. Mr Antino made his own Award in "quite a combative style" and including his own fees of nearly £3.5k. He then attempted to enforce payment of those fees, incurring a further £13.4k costs in the process. The claim brought to the County Court by the Building Owner was for a declaration that Mr Antino's subsequent selection as the third surveyor was invalid and accordingly, his Award unenforceable. Mr Antino lost the case on the basis that in the absence of the very specific conditions set out in section 10(9) of the Act, there was no jurisdiction for the surveyors to change their decision on the Third Surveyor, having already selected one in writing, in accordance with section 10(2). Very unusually, because this was a Part 8 claim and not an appeal of an Award, Mr Antino was made a party to the proceedings, and as such was liable for the Claimant's costs.

Delegation of the surveyor’s functions

The quasi-judicial nature of the party wall surveyor’s functions was also addressed in an unreported case in 2015 where the appointed surveyor delegated much of his tasks to another surveyor in his practice. Consequently, the award was challenged as being invalid. Taking principles from earlier case law relating to the exercise of quasi-judicial powers, HHJ Bailey stated that it was clear that, "a holder of a judicial or quasi-judicial office, or person exercising judicial or quasi-judicial powers, may not except in exceptional circumstances, delegate his responsibilities.” The learned judge went on to hold that a surveyor’s signature on an award created a rebuttable presumption that the surveyor, “has properly conducted himself and that the award he has signed is genuinely his award”. On the particular facts of the case, the award was upheld and deemed to be valid.

However, the principle established in this previous case was returned to in an unreported case in 2016. In that case, the two party appointed surveyors, Mr. Maycox and Mr. Sharkey, delegated much of their functions to other assistant surveyors within their practice, despite those other surveyors not having been appointed to act by the respective parties. The award that was produced did nevertheless bear the signatures of the named appointed surveyors. Undaunted, the Adjoining Owner sought to rebut the presumption created by the surveyors’ signatures and spoken of in the previous case, and sought to show that the award was not truly their award and was improperly made by the assistants.

Again, the learned judge provided useful guidance to practising party wall surveyors, distinguishing the administrative functions of a party wall surveyor from the decision making functions; the former being capable of being delegated to others, but not the latter: “...the decision making involved in making an award cannot be delegated by the party wall surveyor. However, any work that is necessary to enable the decision to be taken can be so delegated. I refer to such matters as the condition survey, engineering calculations, drawings and matters of that sort”.

However, on the facts of the case, it was plain that the assistants were not only involved in the drafting of the award, but also the very decision making involved in the award. Accordingly, and somewhat reluctantly, the judge held the award to be invalid, due to, “improper delegation”.

Conclusion

Whilst party wall surveyors therefore enjoy a unique and somewhat privileged role, recent case law nevertheless establishes that the manner in which they operate and arrive at their awards is coming under ever increasing judicial scrutiny, with awards being declared invalid for any number of procedural reasons. Additionally, it would appear that surveyors who make such errors are increasingly likely to be made parties to the action, with the attendant exposure to adverse costs orders that such entails.

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