The Role of the Third Surveyor under the Party Wall Act 1996

Victor Vegoda

• Publisher: Estates Gazette
• Year: 2019
• Print ISBN: 9781138461406
• eBook ISBN: 9781135327811
• Edition: 1
• Topic: Law
• Subtopic: Property Law
• Index: Law

This book is intended to clear any misconceptions about the responsibilities of the third surveyor and outlines the steps taken in choosing a professional for this role, as well as discussing who may carry it out.

1 The beginning

In the beginning, there was a notice and it was good. If it had not been good, the notice would have been invalid and everything that followed would have been of no effect.¹

The notice should be accompanied by a friendly letter clearly explaining the procedure: and a personal visit, if appropriate, will often smooth the way.

Notices

The notice will either be under:

•s 1 of the Act – Line of junction notice

•s 2 of the Act – A party structure notice

•s 6 of the Act – A three metre or a six metre notice.

Adjoining owner’s options

•Agree to the works. Such agreement must be in writing in accordance with s 3(3) of the Act.

•Both parties to appoint an “agreed surveyor” in accordance with s 10(1)(a). He will act in the interests of both parties and will ultimately serve an award or awards upon the parties.

•Each party to appoint a surveyor in accordance with s 10(1)(b).

It is only under the third option that a third surveyor can be selected and if necessary, appointed.

Surveyors appointments and selection

The only part of the Act which makes mention of third surveyors is s 10 of the Act. I will take you through it.

10(1 )(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).

It is important that the third surveyor is selected “forthwith”, because once a dispute arises which the two surveyors are unable to resolve, they may not be able to agree anything, let alone the selection of someone to resolve their disputes.

Appointments under the Act are personal appointments and are irrevocable except in special circumstances.

10(5) If, before the dispute is settled, a surveyor appointed under paragraph (b) of subsection (1) 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.

Whether a surveyor becomes incapable of acting or just stubbornly refuses to act, as has happened in my experience is a grey area. You will see therefore that it is not easy to divest oneself of a surveyor once appointed. Recourse by the aggrieved party to the third surveyor may circumvent the problem.

Firms or companies cannot be appointed. In large practices, this is often resolved by a partner being appointed and delegating the work to an assistant. If the assistant leaves, he will not then take the instruction and the fee attached to it, with him.

If the two surveyors are unable to agree upon a third surveyor, the procedure in s 10(8) of the Act may be invoked.

If either surveyor appointed under subsection (1)(b) by a party to the dispute refuses to select a third surveyor under subsection (1) or (9), or neglects to do so for a period of ten days beginning with the day on which the other surveyor serves a request on him –

(a)the appointing officer; or

(b)in cases where the relevant appointing officer or his employer is a Party to the dispute, the Secretary of State, may on the application of either surveyor select a third surveyor who shall have the same power and authority as if he had been selected under subsection (1) or subsection (9).

The selected surveyor does not have to accept the appointment. If he dithers, dies or cannot cope, the two surveyors must start again.

(9) If a third surveyor selected under subsection (1)(b) –

(a)refuses to act;

(b)neglects to act for a period of ten days beginning with the day on which either party or the surveyor appointed by either party serves a request on him; or

(c)dies, or becomes or deems himself incapable of acting, before the dispute is settled,

the other two of the three surveyors shall forthwith select another surveyor in his place with the same power and authority.

The building owner, the adjoining owner and one or both of the surveyors can call upon the third surveyor to resolve their disputes.

10(11) Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and he shall make the necessary award.

The surveyors and the third surveyor can only award on the subject-matter of the notice. They do not have the power under the Act to resolve other disputes, though there is nothing to prevent the parties from agreeing outside the Act to abide by a decision of one or more of the surveyors.²

10(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 service of the notice in respect of which the dispute arises or is deemed to have arisen.

Third surveyor awards, unlike those of the surveyors appointed by the parties, do not have to be served “forthwith”: see s 10(14). He awards his own fees and need not serve the award until he is paid.

10(15) Where an award is made by the third surveyor—

(a)he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and

(b)if it is served on their appointed surveyors, they shall serve it forthwith on the parties.

My own practise is to serve the third surveyor’s award, both on the parties and the appointed surveyors.

Who can be a party wall surveyor or a third surveyor?

Anyone other than a party to the dispute. That is anyone except the building owner or the adjoining owner: see s 20.

“surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act.

I once agreed to be appointed as a party wall surveyor by very old friends. The husband was a de facto director of the company but he was not on the board and his wife owned all the shares. Things went well and awards were signed and served. However, towards the end of the development my friend interfered to such an extent that I deemed myself incapable of acting and withdrew. I suggested, tongue in cheek, that as the property was owned by his wife’s company, she could appoint him to act as party wall surveyor in my place.

¹Gyle-Thompson v Wall Street (Properties) Ltd [1974] 1 All ER 295. A notice and an award were sent to a surveyor who had been advising but had not been authorised to accept service of either. In fact, the surveyor had never been formally appointed as a party wall surveyor. Both the notice and the award were therefore ineffective because of the lack of appointment and for the reason that the 1939 Act did not authorise the reduction in height of a wall. The surveyors therefore exceeded their powers in authorising it. This is why it is now customary for surveyors to request a copy of the other surveyor’s letter of appointment.

²Woodhouse v Consolidated Property Corporation Ltd [1993] EGLR 174, CA.

2How do you choose a third surveyor?

Usually, the surveyor appointed by the building owner¹ will write to the surveyor appointed by the adjoining owner suggesting three names for selection as third surveyor.² Usually the adjoining owner’s surveyor will accept one or other of the names suggested. This will be recorded by both surveyors and will subsequently appear in the award.

The adjoining owner’s surveyor does not necessary have to accept one of the surveyors suggested by the building owner’s surveyor. He can come back with his own suggestions. I often do when confronted with a list of surveyors from large and expensive practices which are not particularly close to the site of the subject property.

Choosing a third surveyor is difficult if you do not know anything about the person, as is often the case. I generally accept members of the Pyramus and Thisbe Club.³ This is a club for party wall surveyors. Members can be expected to have some knowledge of the Act but it is not always the case that they do.

The Royal Institution of Chartered Surveyors also has a list of party wall surveyors and there is a new organisation called the Faculty of Party Wall Surveyors about which I have no knowledge other t...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Statutes
• 1 The beginning
• 2 How do you choose a third surveyor?
• 3 What are the third surveyor duties?
• 4 Who may apply to the third surveyor? How to do it
• 5 What should the third surveyor do?
• 6 The case of the missing surveyor
• 7 The case of the aloof third surveyor
• 8 Lessons from the reported third surveyor cases
• 9 Reported third surveyor cases
• Appendix 1 Specimen third surveyor award
• Appendix 2 Part VI London Building Acts (Amendment) Act 1939
• Appendix 3 Party Wall etc. Act 1996
• Index