There are a number of factors to consider before answering this question. If we assume that prior to the work commencing a Party Wall Notice was received, this document should outline the following:
- The type of work that is to be carried out
- The schedule of the work that is to be carried out, including time frames
- An account of the repair, or condition, of your property prior to the start of any works
- If relevant, an outline of works that is to be carried out on your property
The Party Wall award should also refer to costs and compensation that may be awarded to you in the event of damage incurred because of the works that has taken place.
To be clear, a Party Wall Notice is an important legal document that makes up part of the Party Wall etc. Act 1996 process and does in fact starts the process running. This act is in place to serve as a means to protect property owners when certain building works take place that impact on neighbouring properties. The Notice is issued by the property (Building) owner undertaking the building works.
When the works are to the party wall the Adjoining (neighbouring) owners should be in receipt of this notice at least two months prior to the start of building works. It is in everyone’s best interest if a Notice is served earlier as it allows time for any issues or disputes to be resolved. Because Notices are only valid for one year, some thought has to be given as to when it is served. You do not want the notice to expire before works has started.
The Party Wall etc. Act 1996 can cover building work for loft conversions, new roofs, extensions, conservatories, fences, basements and garden walls. It is important to hire the services of an experienced and professional Party Wall Surveyor to prepare and serve the correct notices.
I have received a Party Wall Notice from my neighbour, what should I do next?
If it is your belief that the crack has appeared as a direct result of your neighbours building works, the first thing you should do is re-read your Party Wall Notice. Check if there is a clause within it that permits a final inspection by your Party Wall Surveyor. Relay to him your concerns and he will assess whether or not the actual work is outside the remit of the authorised Notice. If his inspection reveals that the work was not permitted and/or is the cause of the crack in your garage, the building owner will be in breach of the award.
If this is the case, the Act sets out how the surveyor will deal with this problem, and how it will be addressed. You can request payment in cash for the repairs.
So, do I need to talk to my neighbour about this?
Your appointed Party Wall Surveyor is the first point of call and will be able to cast their expert eye over the cracks and make an assessment as to the cause. If it transpires that your neighbours’ building works have caused the cracks, he will notify the neighbours surveyor (unless appointed as an agreed surveyor) and be instructed to rectify the works or pay you in cash. Alternatively, you can use your own contractor, if that is what you prefer.
Disputes over building works can cause animosity and put a strain on the relationships between neighbours. Talking to your neighbour about your concerns, may help ease tensions and reduce potential costs (or could inflame them) if the problem is not quickly resolved. In the event that an agreement is still not reached, between the two surveyors, then a referral to the third surveyor may be necessary. His role would be to adjudicate upon the situation which would add a further expense.
If this question relates to a situation that you are experiencing at the moment, then get in touch today on 01245 490 019. Our team of expert Surveyors are experienced at dealing with a wide variety of party wall issues and we can be appointed in the capacity of: Agreed Surveyor, Adjoining Owners Surveyor and Building Owners Surveyor, if the works have not yet started. If you feel that your Surveyors are not acting correctly then we can act as an independent advisor.
Whilst we are based in Chelmsford, our party wall surveyors are and indeed do travel across the UK visiting clients in the south east of England, but predominantly Essex, London, Norfolk, Cambridge and beyond.
Under the Party Wall etc. Act 1996 it is widely accepted that the appointed agreed surveyor, building owners surveyor and adjoining owners surveyor cannot get paid until an Award has been issued setting out what their fees are. The only surveyor under the statutory legislation (s.10(11)) that can be paid prior to release of an Award is the third surveyor. This is because the third surveyor does not have a statutory appointment and/or a contract at common law with either the appointed surveyors and/or building and adjoining owners, neither does a s.10(4) surveyor.
This point was raised by Philip Antino in Mohamed v Antino & Stevens (2017), and further reinforced by Ray Stevens (the third surveyor). The matter was before HHJ Bailey and it was accepted that the third surveyor had no contractual obligations and therefore had considerable difficulties of getting paid outside of the Act. Clearly this issue must have been the underlying purpose behind the third surveyor’s right to request payment prior to release of his Award.
Ironically however, this creates a problem for the third surveyor where the owners have refuse to pay his fees. If he does not release his award (because he has not been paid) he will never get paid. So a situation arises where the parties fearing perhaps an adverse decision against them or indeed simply because they do not want to pay any costs, refuse to pay in the belief that the third surveyor will not issue an Award.
There is one particular surveyor who occasionally gets appointed as a third surveyor and openly boasts having a number of third surveyor awards sitting on his shelf. He will not release them because he has not been paid, (which seems to be somewhat counterproductive). If as the Third Surveyor you are not prepared to release the awards prior to payment you might as well not take the third surveyor selection in the first instance.
Notwithstanding, however, with regard to the building and/or adjoining owners surveyors generally party wall matters are concluded quickly and that applies to the majority of cases, being a matter of weeks rather than months or years. There are the odd cases where one party is acting unreasonably and matters become delayed or stalled for a considerable period of time. In such circumstances the issue arises as to whether or not a surveyor is entitled to make an application for an interim payment.
The author as the adjoining owners surveyor did this in one recent party wall matter (still live) where the building owner who is a solicitor took great exception to the request for payment, his appointed surveyor also disputed the right to make an application for an interim payment claiming that unless it can be shown under the Act that there is a right to do so, there is no obligation to pay any monies on account. Well s.10(13) entitles surveyors to make a determination for reasonable costs and s.10(12) for matters arising out of or incidental to.
s.10 (12) (a) (b) & (c)
(12) An award may determine-
(a) the right to execute any work;
(b) the time and manner of executing any work; and
(c) any other matter arising out of or incidental to the dispute including the costs of making the award; but any period appointed by the award for executing any work shall not unless otherwise agreed between the building owner and the adjoining owner begin to run until after the expiration of the period prescribed by this Act for serve of the notice in respect of which the dispute raises or is deemed to have arisen.
s.10 (13) (a) (b) & (c)
(13) The reasonable costs incurred in-
(a) making or obtaining an award under this section;
(b) reasonable inspections of work to which the award relates; and
(c) any other matter arising out of the dispute, shall be paid by such of the parties as the surveyor or surveyors making the award determine
A referral was made to the third surveyor. The third surveyor said that in his view, that where circumstances indicate it is reasonable for a surveyor to be paid a sum on account of their services.
The building owners surveyor claimed that this was simply wrong and that because the third surveyor had now given an indication of how he would rule that he should step down under s.10(9). A tactic now adopted by those having a weak position, claiming that the surveyor could no longer act because of a perceived or actual conflict of interest. That was simply wrong and s.10(2) prevents this. It was ridiculous position to adopt and indeed his appointing owner (solicitor) to suggest that because the surveyor was saying look guys this is actually my view. If you want to make a referral to me I will but this is what I am going to say, created a conflict.
Now the author (Philip Antino) again wrote to the building owners surveyor and said in clear and explicit terms “I have asked for a payment on account, I have not specified the amount and it is open to you to make an offer. It seems sensible to do so, to avoid incurring the cost of a referral to the third surveyor.
The building owners surveyor responded claiming that there are no grounds to make an interim payment but he would happily reach an agreement on the total fees because he believed that the party wall matters had been concluded. Mr Antino did not accept that the matters were concluded.
On the face of it, it seems ludicrous that the building owner and/or more importantly his appointed surveyor should adopt this approach claiming that an interim payment could not be made when matters had been ongoing for over a year. The building owner clearly accepted that there was a liability to pay fees, those fees were subject to discussions/agreement or a referral to the third surveyor on their reasonableness at some stage in the future.
Having accepted liability to pay something they did not advance any offer other than one on a full and final settlement which was not accepted. This was on the face of it quite clearly a ridiculous position to adopt because having now accepted liability that amount became payable.
There is a right in law where there is an accepted liability that payment should be made on account.
The building owners surveyor was again invited to reconsider his position, he was adamant there was no right for an interim payment, and no liability, the referral was made, costs started to accrue at quite an alarming rate.
After several weeks the building owners surveyor changed his position and accepted that an interim payment can be paid but only where liability has been determined. Not realising that his offer of £2,000 was in fact an admission of liability in part.
Having this pointed out to him by Philip Antino they continued to argue the point and it was referred to the third surveyor.
Not surprisingly, the third surveyor determined that interim payments can be (in certain circumstances) reasonable and that as there was an accepted liability for £2,000, that would be a reasonable amount to pay on account with the balance to be agreed between the parties at some time in the future, or by way of a further referral.
The building owner threatened an appeal but did not actually go through with it and has now paid in addition to the £2,000, £910 for Philip’s costs in the referral and £1,250 for the third surveyor.
There is a misconceived position held by a substantial number of party wall surveyors and/or property owners that the party wall surveyor(s) cannot determine the position of the boundary or what is commonly referred under the Act as the line of junction.
On the literal reading of s.1 of the Party Wall etc. Act 1996, which deals with building of new walls on the line of junction and/or repairs to walls on the line of junction, and/or building astride the boundary, the surveyors will have to make a determination as to where they believe the boundary is on order to determine whether or not notice should be served in respect of building a party wall or a party fence wall on the line of junction under s.1(2) or building a new wall on the line of junction but wholly on their land under s.1(4) where an adjoining owner has not consented to works under s.1(2) or indeed under s.1(5 where they simply want to build a wall on the line of junction but wholly on the building owners land. Furthermore, under s.1(6) the building owner has the right to project footings (not special footings) on to the adjoining owners land without written consent.
It must therefore follow that in order to determine which parts of the Act apply and therefore which notice must be served, the party wall surveyors have to make a determination as to the boundary position.
In the majority of party wall disputes, it is relatively straightforward to determine the boundary. Where however there is a dispute as to where the boundary position is, then the surveyors will have to make a determination in order for them to complete their statutory duties, which is to provide an Award that allows an owner to undertake certain works.
When they make their determination on the boundary for the purposes of establishing whether a notice is valid in the first instance and subsequently what works can be undertaken, the surveyors have to recognise and state that they are making a determination on a legal point for the purposes of being able to conclude their statutory duties. It is not a legal determination of the boundary and the parties are not bound by it, insofar as they can challenge that determination by way of an appeal of the Award.
They cannot challenge, in my view, whether the surveyors have the right to make that determination because it must follow that Parliament anticipated the party wall surveyors reaching (even if it is disputed) an option as to where the boundary is, so that valid notices can be served under the legislation.
The party wall surveyors should state within their Party Wall Award, the basis which they are saying the boundary is in that position. It is for the purposes only of determining under the Party Wall Act whether s.1 applies, and then leave it for the owners to challenge if they wish to do so.
The case of Bibizadeh v Dodosh where Mr Philip Antino acting for the adjoining owners (“Dodosh”) and the building owners having served in the first instance notices under s.1(5) to build a wall on the line of junction. They could not agree on the position of the boundary. The Bibizadeh’s attempted to withdraw the notices, which HHJ Bailey recorded in his judgment, could not be done, they refused to appoint a surveyor. As a dispute had arisen Philip Antino appointed under s.10(4) because the building owners had refused to comply with their obligations.
The two surveyors jointly agreed the position of the boundary and served an Award. The Award was initially challenged on a preliminary point which failed, and the Bibizadeh’s then chose to challenge any other aspects of the Award including the boundary position.
A drawing was produced by Philip Antino setting out the boundary position as discussed and agreed between the two surveyors and determined in the Award. Unsurprisingly, that was subsequently challenged by the Bibizadeh’s in later litigation before HHJ Bailey who held that the drawing produced by Philip Antino correctly reflected the position of the boundary. The boundary was then set out in accordance with that drawing by a wholly independent surveyor selected by the Bibizadeh’s and the fence that had been unlawfully removed by the Bibizadeh’s reinstated.
There can be no clearer indication than the decision in this litigation and/or indeed on the literal reading and a common sense approach, that the Act anticipates boundary positions being an issue, and that the surveyors are required to make a determination on a boundary position in order to complete their statutory obligations, in respect of s.1 of the Party Wall etc. Act 1996.