This is a scenario we hear all to often and it can cause a fair amount of concern.
It relates to the Party Wall etc Act 1996 (PWeA), where Notices have not yet been served, but a firm offering Party Wall Surveyor services has written to the neighbouring owners and "encouraged" or "enticed" the neighbour to appoint them as their Surveyor. This, on the face of it, might not be an issue, and indeed it might be the correct course of action... so lets take a step back to look at why there are some common issues.
We first need to understand the 'normal' order of events.
1) Design
2) Planning Applications
3) Building Regulation Applications
4) Finding a Builder and agreeing prices
5) Planning the earliest date to start on site
6) Serving Notices in accordance with the Party Wall etc Act 1996.
And, it could be up to 3 years from step 2 to step 6, but Notices under PWeA only have a 'shelf-life' of 12 months. Equally there could be a change in circumstances and it could be decided that the works are never going to be built. So serving Notices too early could be wasted effort or even completely unnecessary.
So let's now look at the situation with what some 'speculative' firms are doing.
1) A Planning Application is made by the Building Owner
2) The firms are receiving databases of Applications and writting to neighbours offering their Party Wall Surveying Services, saying it will cost them (the neighbour) nothing.
3) The neighbour is appointing the firm without checking costs or the validity of the appointments.
4) The Surveyor is writting to the Building Owner saying that there is a dispute and (often forcefully) saying that they also need to appoint a Surveyor.
5) And yet it could still be up to 3 years away from the Building Owner being ready to Serve Notice.
What has happened is the firm has probably secured an appointment way to early.
Then the biggest concerns..... many of these firms are based a long way from the locality of the Building Owner's property, and some of these firms are charging 2 or 3 times the amount of a local Chartered Surveyor (and often these 'speculative' firms are not Chartered Surveyors). So without realising it, and way too early, the neighbour has signed-up for an unreasonably large cost that will be presented to the Building Owner or could even come back to the Adjoining Owner to pay.
On a large number of occasions we have also found that the works are not even notifiable under the PWeA and so the Surveyor's appointment is no valid from the start.
Not all is lost. At PBSC we have found a few solutions to the situation. The easiest is...
As long as the Building Owner has not Served Notice and they have not started Notifiable works then it could be argued that there can be no dispute... A "deemed dispute" can only follow Notice and a [real] dispute can only follow work starting or disagreeing with the content of a Notice. So with no dispute there is no mechanism under Section 10 to appoint a Party Wall Surveyor to resolve the 'non-dispute'.
In-turn this could mean that the Building Owner is not responsible for any of the costs of the mis-appointed Surveyor, and the Adjoining Owner may have been told by that Surveyor that it would cost them nothing, so both parties escape the unreasonable or unnecessary fees.
At the appropriate time, then the Building Owner can later serve Notice and then a local Party Wall Surveyor (or Surveyors) can be appointed for the deemed or actual dispute.
In situations where the Adjoining Owner insists on staying with the first Surveyor then any costs must still be reasonable, so the Building Owner should not be paying "over-the-top" fees. Any shortfall that the Building Owner is not paying would be between the Adjoining Owner and the Surveyor to sort out & settle.
So our top tips for Adjoining Owners would be to: > decide if there is actually anything to 'dispute' under the PWeA;
> only appoint locally;
> only appoint a Surveyor at the appropriate time in the process (which would normally be triggered by receiving Notice from the Building Owner);
> be clear about who will have to pay the fee if the works are not going ahead.
Our top tips for Building Owners would be to: > ensure Notices are served in a timely manner, and let the neighbours know that you will be serving the Notice at the appropriate time;
> if you receive a letter from a Surveyor, and you have not yet served Notice, then speak to your neighbour to check if they have actually appointed them;
> if they have responded to the speculative letter then contact a local surveyor to look into the matter with you.
If you are in any doubt then we are always happy to offer initial guidance and assistance to either Buiding Owner or Adjoining Owners.
As every case is different and the above is not 'advice' that would be applicable in every situation. Professional Advice that you can rely on would be given by us after agreeing specific instructions for specific cases.
