James Jackson, Head of Training and Education with the Faculty of Party Wall Surveyors outlines how third surveyors are selected in party wall matters and what their role involves.
Many practicing party wall surveyors are selected to act as a third surveyor and yet do not get to know that such a selection has taken place. The two appointed surveyors have merely made a selection of their choice and, quite simply, have not bothered to inform the person selected of that choice. Although this is a somewhat casual approach to dealing with party wall procedures, it generally arises out of the two appointed surveyors assuming that there will not be a need to refer any matters to the third surveyor because the two appointed surveyors are sufficiently well known to each other, and are confident that they will not cause a dispute which will need to be resolved by the third surveyor.
Alternatively, it is often assumed that the time scale for resolving party wall disputes will be so protracted that it will not be possible to predict when a third surveyor may be available, should the need arise for the engagement of his services. This approach is all well and good when appointed surveyors are well known to each other or anticipate that the resolution of the disputed matters before them may take a good deal of time to bring to a conclusion.
More often than not, appointed surveyors will apply themselves with sufficient diligence to resolve the matters that the dispute requires them to deal with and therefore, the third surveyor is not called upon to act, but nevertheless the third surveyor must be selected by the appointed surveyors “forthwith” i.e. without delay and prior to carrying out any work whatsoever.
However, there is more to the selection process than is suggested above. Firstly, The Party Wall etc. Act 1996 is specific in its provisions, particularly when administering Section 10 of the Act; namely, section 10 (2) states that “all appointments and selections made under this section shall be in writing and shall not be rescinded by either party”.
Therefore, despite the casual approach of appointed surveyors or their concerns for the potential time scale involved with the preparation of an award, the selection process for a third surveyor should be as formal as the process for engagement of appointed surveyors. Failure to select a third surveyor in accordance with the procedures laid down within section 10 (2) of the Act may lead to invalidation of all work carried out by the two appointed surveyors, particularly if they are unable to demonstrate they have made a prior selection of a third surveyor.
The selection process takes on further significance insofar as it is not only an option for the two appointed surveyors to refer matters in dispute between themselves to the third surveyor, but there is also a right for each of the appointing parties to call upon the third surveyor so selected to resolve any matters which they themselves wish to have determined by the third surveyor.
Although not stated within section 10 (11) of the Act, it is implicit that this right of both of the appointing parties to refer matters to the third surveyor must be available from the outset (i.e. from the moment at which the selection has been made by the appointed surveyors). Therefore, the two appointed surveyors have a duty of care to advise their appointing owners as to who has been selected to act as the third surveyor and to add the caveat that trivial or incidental matters should not be directed to him, insofar as the cost of a third surveyors award may be awarded against the owner who refers the matter to him.
Choose your third surveyor with care
It is good practice to ensure that third surveyors have sound knowledge of the Act including its workings and established practice. When called upon to act, a third surveyor should be of sufficient competence to know how to deal with the matters brought before him. Inexperienced or incompetent third surveyors may serve Awards which will render them liable to appeal, and may be fundamentally incorrect on the face of things.
Third surveyors do not necessarily have to make awards when matters are referred to them. They may advise or direct the appointed surveyors accordingly.
If a third surveyor, having been given a specific remit, observes that other matters already agreed upon by the appointed surveyors are incorrect, he may not interfere with these other matters because he has not been given a remit to do so.
There is no established format for laying out the presentation of third surveyors’ awards. However, they may be prepared and served in a similar format to the established (traditional) way in which awards prepared by appointed surveyors are laid out.
As third surveyors awards are binding legal documents they should be signed and witnessed as with any other Award.
When called upon to act as a third surveyor it is good practice to observe the following procedures:
- Establish or check the status of the building owner or owners;
- Establish or check the status of the adjoining owner or owners;
- Identify if there are any leaseholders involved in the proceedings;
- Identify if there are any occupiers likely to be affected by the proceedings;
- Check the validity of the notices served;
- Check the validity of the appointed surveyors and their letters of appointment;
- Inform both parties and their surveyors that you have been called upon to resolve a dispute via the preparation and service of a third surveyors award;
- Inform both parties and their surveyors of the implications and the consequences of the service of a third surveyors award upon them;
- Prepare a list of documents submitted for consideration;
- Ensure that both of the parties and/or their surveyors have seen all of the documents;
- Deal with ONLY the matter(s) put before you as being in dispute;
- Set out the matter(s) in dispute as follows:-
– Evidence
– Reasons
– Summation
– Award of costs/damages/compensation (where applicable)
– Conclusion.
All appointed surveyors and third surveyors have a duty of care to prepare their awards carefully and in a proper professional manner. It is good practice for all surveyors to consider scrupulously the preparation of their work and treat it as if it will appear before a judge with its accuracy and validity being called into question.
Finally, it is appropriate for all surveyors to remember that party wall awards (including third surveyors awards) are binding legal documents and that there is a right for either of the parties to challenge an award by appealing it to the county court, and doing so within fourteen days of the service of the award. The very nature of third surveyors’ awards, dealing more often than not with potentially controversial elements of party wall disputes will inevitably identify them as being more liable to be appealed, and this endorses my earlier comment to choose your third surveyor with care.
James Jackson FFPWS
Head of Training and Education
The Faculty of Party Wall Surveyors
Tel: 01424 883300
