James Jackson, Head of Training and Education with the Faculty of Party Wall Surveyors emphasises the correct procedures to follow under the Party Wall etc. Act 1996…
Ensuring that correct procedures are put in place to guarantee that the service of party wall notices and their subsequent awards are valid need not be an onerous task, despite the fact that so many members of the general public when serving their own notices and, indeed, party wall surveyors, fail to follow the correct procedures that are necessary to ensure that both notices and awards are all served correctly.
Duties of Owners
First and foremost, it must be made clear to persons who may be seeking party wall advice that it is the duty of a building owner to serve the appropriate notice or notices upon all adjoining owners. In absolute terms – NO NOTICES means NO RIGHTS under the terminology of the Party Wall etc. Act 1996.
Identification and validity of Owners
It is essential to establish who is a building owner. A building owner is a person, persons or body corporate who owns the freehold of a property or plot of land, or who possesses a leasehold interest in the same, providing that the leasehold interest is for more than one year. When serving party wall notices all persons who are owners must sign the notice or authorise an agent to act on behalf of the building owner, or alternatively when acting as a body corporate, a duly authorised representative of that organisation i.e. a director or company secretary must have been appropriately authorised to act on behalf of the organisation.
How does one identify a building owner? Merely asking a person if they own a property is not sufficient. It will lead to the most amazing type of replies and, as has often been said – trust no-one. The most reliable and satisfactory way in which to identify ownership is to obtain access to this information from the Land Registry web site. For the princely sum of three pounds it will be possible to find the most reliable source of who owns property throughout the whole of the United Kingdom. Not only will this provide the most reliable source of such information, it will also stand you in good stead if the ownership of a particular property is ever called into question.
Identification of owners is paramount, and not only is it necessary to identify the building owner(s) but the same procedure should, likewise, be followed to identify all of the adjoining owners.
To avoid the risk of a party wall award being appealed by either of the appointing owners it is essential for party wall surveyors to create a good “Paper Trail” which must deal with all of the following issues:
- Letters of Appointment
- Service of Notices
- Agency and Statutory Roles
- The Third Surveyor (where applicable)
Letters of Appointment
Building Owners may discharge their Party Wall duties via agency providing that all Building Owners subscribe to the letters of Authorisation for the Agent to serve Party Wall Notices on their behalf. It is common practice for letters of Authorisation to continue with the statement “In the event of a dispute arising I/we authorise you (naming personally the Party Wall Surveyor) to settle all matters in dispute by Award and to make any further appointments on my/our behalf (see standard Faculty of Party Wall Surveyors letters in this regard).
Letters of Appointment must be directed to an individual only. Corporate organisations cannot be appointed to act as Party Wall Surveyors.
Service of Notices
Party Wall Notices must be served upon all adjoining owners for all elements of works which are notifiable under the Party Wall etc. Act 1996 and, to ensure their validity they must contain three essentials:
- The name(s) and address(es) of all of the Building Owner(s)
- The nature and particulars of the proposed works
- The date on which the proposed works will commence
N.B. Additionally, where a Notice is served under Section 6 of the Act, plans and sections of the proposed works showing the relative relationship with Adjoining Owner’s foundations must also be provided.
Agency and Statutory Roles
Building Owners may discharge their duties to serve Party Wall Notices via Agency i.e. by authorising another person to act on their behalf. This duty is normally discharged by a Party Wall Surveyor acting in anticipation of a dispute arising.
Until such time as a dispute does arise, the Party Wall Surveyor is not acting in a statutory capacity; he is merely discharging his Client’s responsibilities and duties.
The agent’s role will only change to a Statutory Appointee if there is actual or deemed dissent from the Notices served upon the Adjoining Owner(s) and the letter of authorisation further confirms the appointment of the named Agent “in the event of a dispute arising”.
Life and expiration of Notices
Notices shall cease to have effect if the work to which they relate has not begun within the period of twelve months beginning with the day on which the Notices are served and also if the work is not prosecuted with due diligence.
These conditions shall apply only where consent is granted to the Notices.
Where there is dissent to the Notices, and Party Wall Surveyors are appointed to prepare Awards, the life of the Notices becomes indefinite. It is established custom and practice however, for Party Wall Awards to give a reasonable life expectancy to the works. It is also established custom and practice for Party Wall Surveyors to incorporate within their Awards the right for them to prepare and serve a further, or further Awards (as the case may be), to ensure that the process is not thwarted if and when additional matters need to be dealt with
Adjoining Owners replies to Notices
The Adjoining Owners have a number of options when Party Wall Notices have been served upon them; namely:
- They may consent to the Notifiable works
- They may dissent from the Notice and agree to the Building Owners Surveyor acting as “The Agreed Surveyor”
- They may dissent from the Notice and choose to appoint their own Surveyor who will become an “Appointed Surveyor”
- They may choose to ignore the Notice. Should they do so for a period of fourteen days after service of the Notice a dispute is deemed to have arisen. Once this has occurred the Building Owner (or his Surveyor) may serve a further notice giving the Adjoining Owner a further ten days in which to appoint a Surveyor
- If the Adjoining Owner ignores the further notice the Building Owner (or his Surveyor) may appoint a Surveyor to act on behalf of the Adjoining Owner under Section 10 ( 4 ) ( b ) of the Act.
Serving the Award
Party Wall Awards are always served. Use of the words “deliver” “issue” “post” etc. are to be discouraged and awards are never “published”. They are private documents between the respective parties and are to be served “forthwith” upon the Appointing Owners.
An Appointed Surveyor cannot refuse to sign an Award until his costs have been paid to him. A blanket refusal to do so from an Appointed Surveyor should be met with a statement that his actions are improper and that the Award will be served without him and may also be served without reference to his costs being included within it.
There is a Duty of Care placed upon Appointed Surveyors to inform their Owners that they have a right of appeal against a served Party Wall Award which must be made in a County Court within fourteen days of the date of service of the Award.
Failure to inform Owners of this right of appeal is a dereliction of duty.
Third Surveyor’s may call for their costs to be met by both of the Parties prior to the service of his Award. After service of his Award, the Third Surveyor may then choose to reimburse them in direct proportion as directed within his Award.
Third Surveyors’ Awards may be appealed in the same way as Appointed Surveyors’ Awards. i.e. via an appeal to the County Courts made within fourteen days of the date of the Award.
Costs and Payment
It is always “Costs” that are referred to within Party Wall Awards, and these costs may contain Surveyor’s fees and other disbursements accordingly. It is established custom and practice that Adjoining Owner’s Surveyor’s costs are generally incorporated into Party Wall Awards thereby committing the particular Owner against whom costs have been awarded to the responsibility for “Third Party” fees and costs. It is also good practice to Award the Building Owner’s Surveyor’s costs within the Award thereby making the recovery of such costs from a defaulting Owner a more certain process.
If Party Wall Surveyors are required to involve specialist services or engage other professional disciplines they are empowered to do so and such costs of doing so may be incorporated within the Award. ■
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James Jackson FFPWS
Head of Training and Education
The Faculty of Party Wall Surveyors
Tel: 01424 883300
enq@fpws.org.uk
