Party Wall Survey

james.jj

We had a lot of problems with this man. He contacted my neighbour after trawling the council planning site. We begrudgingly accepted to use him as agreed joint surveyor to keep costs down. He drew up the party wall award which cost us nearly £1200 After our work started we heard nothing more until an "addendum award " arrived on our door mat while the works were still going on. He had arrived at the request of my neighbour ,without notice to us, and said we had deviated from the original plans by being 20 cm away from the boundary line i.e. being more on our side and not now up to the boundary. He also request we replace all or her corner bricks as she said we had damaged them ( this damage had been there for years) he also awarded her £250 compensation for amongst things, having to draw her curtains while our builders were on the scaffolding. This addendum award was a further £580. We refused to pay and were threatened with court. Luckily I had detailed photos of her house and brick damage before the works started. They we visible in his conditional report and I got him to admit in email the damage was there before our works started. This invalidated the award and we told him to get lost. He was struck off from RICS so I complained to the Association of Building Engineers of which he is a member. I was told that after interviewing him , he would be struck off from them if he behaves like this again. Probably too late for you but others should be aware of this industry rouge.

gamb2

In an ideal world, try talking to your neighbour and see if you can agree on a mutual surveyor who is not going to take you to the cleaners.

My own investigations of a year or two back suggested that every single one of the surveyors who contacted me, uninvited, either had very poor feedback or were just plain crooks.

If you are on good terms with your neighbour, you should be able to find someone from the professional register that other have spoken of and get a reasonable quote from them.

gamb2

chappers

Right from the start;
The person carrying out the works is the person who invokes the PWA not the neighbour, before I continue there is no provision/penalty in law for not invoking the PWA and the neighbour would have to take out a court injunction to stop the works.
As the neighbour carrying out the works your responsibility for damage etc is still the same whether you invoke the act or not and is again a civil matter.
However not serving a PWA may make it hard for you to carry out some of the works if your neighbour refuses to allow you access to their land etc.

If you serve a PWA on your neighbour, they can do 1 of three things;
1)agree to your proposals
2)agree to your proposals with conditions which you agree amongst yourselves
3) dissent to your proposals

If they dissent this is where surveyors come in, note all surveyors fees are paid by the neighbour serving the notice.
You can both agree to use the same surveyor or use your own, if through the surveyors you still can't reach agreement then the two surveyors will appoint a third surveyor, again at your cost, who will make an award/decision on conditions.
My personal advice to you would be to not serve notice on your neighbour, as you will be responsible for this dodgy surveyors fees and these sort of people are notorious for dragging cases on and making up spurious fees. Some cases have run into 10's of thousands
I would politely tell your neighbour you won't be serving them a party wall notice for the reasons given and most definitely wont if they instruct any surveyor who comes touting for business.

The PWA is a toothless waste of space IMHO and usually causes as much trouble as it seeks to solve. It is a subjective act that provides not further protection than already exists within the law and that is why these parasites come out of the woodwork.
Until you invoke the PWA they cannot be instructed so don't do it, if you start your work and these people want to try and take out an injunction and use these people to help them it will be at their cost and not yours.

Do a search on here for Vincent Brown and see what it brings up.

MisterBaxter

chappers wrote: »

Right from the start;
..................
If they dissent this is where surveyors come in, note all surveyors fees are paid by the neighbour serving the notice.
You can both agree to use the same surveyor or use your own, if through the surveyors you still can't reach agreement then the two surveyors will appoint a third surveyor, again at your cost, who will make an award/decision on conditions.
My personal advice to you would be to not serve notice on your neighbour, as you will be responsible for this dodgy surveyors fees and these sort of people are notorious for dragging cases on and making up spurious fees. Some cases have run into 10's of thousands
I would politely tell your neighbour you won't be serving them a party wall notice for the reasons given and most definitely wont if they instruct any surveyor who comes touting for business.............

It is not always down to the Building Owner to pay all fees and there are circumstances under which the Adjoining Owner may be liable for part or all of their own fees (See item 15 on the explanation booklet https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/393927/Party_Wall_etc__Act_1996_-_Explanatory_Booklet.pdf) and there are provisions for appeal but this could also be costly. If any of the issues mentioned in Item 15 in the booklet apply it could be a mechanism for deterring the use of surveyors who charge extortionate fees. There is provision with the Act to appoint a third surveyor but I don't think this would be applicable simply to look at fees being charged.

If the surveyors involved are RICS registered then report them; remember under PWA none of the surveyors work for any of the parties involved, the actually work for the Party Wall in the interests of the Party Wall Act and are supposed to act in a completely impartial manner; I have come across a good number who do behave this way but there are also a good number who see it as their duty to get the best deal for the party they have been appointed by.

You could simply choose not to pay and the only course of action they would have is to seek recovery through Court; it isn't risk free but there is a chance that surveyor appointed by the Building Owner or an RICS expert witness would be willing to state that the company in question were acting outside the scope of the PWA and were charging fees not commensurate with the work.

As Chappers says in this instance not serving the PWA would mean the neighbour can't appoint a surveyor under the PWA (although I believe that there is some pending case law that may question this on the grounds that the requirement for PWA is absolute and as such failure to serve notice automatically results in dissent/dispute); hopefully the company that has written to them is lazy and just looking for easy money so will go away if the argument is put to them that no notice has been served so PWA doesn't apply; however if they are more adventurous they could assist the neighbour in seeking an injunction for failure to follow proper process and then hit you with fees that way (neighbour would most likely be treated favourably where PWA hasn't been followed as Courts are likely to look down on people not following due process). PWA was also designed to allow the person doing the building easy access over their neighbours land to undertake the works, again if your neighbour digs their heels in you may have difficulties with the physical build; a lot depends on whether your neighbour is amenable and you have to think how you will do your build if they don't play ball.

PWA can be a pain but it has it's uses; as the person wanting to do the build and as the person who knows their neighbours you need to decide whether or not you need to make use of the PWA to your advantage.

teneighty

I would agree that the best option is to talk to the neighbour and get their agreement well before you actually submit the planning application and certainly before you start work. Major charm offensive required, wine, chocolate, flowers, whatever it takes. It will be cheaper in the long run. Also if you have your neighbour on board before you submit your planning they are less likely to fall for the unsolicited scam letters from the unscrupulous party wall sharks or indeed object to your planning application.

However the biggest risk of just steaming ahead without getting agreement or following the statutory procedure is you will be held liable for all damage to the adjoining property (how can you prove it was already damaged if you didn't have a condition survey) and extremely high fees. You will almost certainly lose in court if you have not followed the procedure.

A court injunction is only required to stop the work. Action for damages is much easier and well within the scope of most homeowners.

If in doubt employ a local independent party wall surveyor, one regulated by a professional institution such as the RICS (others are available) or your architectural designer may be able to undertake the role, they might be cheaper than you thought. It really doesn't have to cost that much if the neighbours aren't already at war and looking to score points.

chappers

MisterBaxter wrote: »

It is not always down to the Building Owner to pay all fees and there are circumstances under which the Adjoining Owner may be liable for part or all of their own fees (See item 15 on the explanation booklet https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/393927/Party_Wall_etc__Act_1996_-_Explanatory_Booklet.pdf) and there are provisions for appeal but this could also be costly. If any of the issues mentioned in Item 15 in the booklet apply it could be a mechanism for deterring the use of surveyors who charge extortionate fees. There is provision with the Act to appoint a third surveyor but I don't think this would be applicable simply to look at fees being charged.
True enough but probably not applicable in this case

If the surveyors involved are RICS registered then report them; remember under PWA none of the surveyors work for any of the parties involved, the actually work for the Party Wall in the interests of the Party Wall Act and are supposed to act in a completely impartial manner; I have come across a good number who do behave this way but there are also a good number who see it as their duty to get the best deal for the party they have been appointed by.

You could simply choose not to pay and the only course of action they would have is to seek recovery through Court; it isn't risk free but there is a chance that surveyor appointed by the Building Owner or an RICS expert witness would be willing to state that the company in question were acting outside the scope of the PWA and were charging fees not commensurate with the work.
These weasels unfortunately know the law very well and act within it only doing things they know they can technically charge for

As Chappers says in this instance not serving the PWA would mean the neighbour can't appoint a surveyor under the PWA (although I believe that there is some pending case law that may question this on the grounds that the requirement for PWA is absolute and as such failure to serve notice automatically results in dissent/dispute);
I saw something along these lines a while back , but believe the case fell down due to the nature of the PWA and that it isn't protected by any provision in law for penalty or compulsory enforcement, there have been several cases over the years of trying to claim under a point of law surrounding the act all have failed as the act has no statute legislation as such behind it.
It was badly thought out at it's inception
hopefully the company that has written to them is lazy and just looking for easy money so will go away if the argument is put to them that no notice has been served so PWA doesn't apply; however if they are more adventurous they could assist the neighbour in seeking an injunction for failure to follow proper process and then hit you with fees that way (neighbour would most likely be treated favourably where PWA hasn't been followed as Courts are likely to look down on people not following due process).
This may also be true however that surveyors fees would then fall to the neighbour, they would bring you to court and you would stand up and say the reason you didn't invoke the PWA was because of the reputation of this company and that you tried to mediate separately with your neighbour, but they refused. Then you state your case why an injunction wouldn't be applicable. On top of that the probability of the case being heard before you had the extension up to a level where you weren't working on the party wall is highly unlikely
PWA was also designed to allow the person doing the building easy access over their neighbours land to undertake the works, again if your neighbour digs their heels in you may have difficulties with the physical build; a lot depends on whether your neighbour is amenable and you have to think how you will do your build if they don't play ball.
That is the major problem if you just bullishly tell your neighbour to do one' you are continuing anyway, if you really have the balls you could just trespass as this is a civil offence.

PWA can be a pain but it has it's uses; as the person wanting to do the build and as the person who knows their neighbours you need to decide whether or not you need to make use of the PWA to your advantage. Only problem is if you do go down the PWA with these guys acting for your neighbour you will undoubtedly get properly stung for their fees. This is how they work, they get the neighbour onside telling them not to agree with anything until it is in a PWA agreement, then move in for the kill when the building neighbour thinks they have no choice but to enter an agreement.

Sorry for writing all over your quote but it was probably the easiest way

chappers

teneighty wrote: »

I would agree that the best option is to talk to the neighbour and get their agreement well before you actually submit the planning application and certainly before you start work. Major charm offensive required, wine, chocolate, flowers, whatever it takes. It will be cheaper in the long run. Also if you have your neighbour on board before you submit your planning they are less likely to fall for the unsolicited scam letters from the unscrupulous party wall sharks or indeed object to your planning application.

However the biggest risk of just steaming ahead without getting agreement or following the statutory procedure is you will be held liable for all damage to the adjoining property (how can you prove it was already damaged if you didn't have a condition survey) and extremely high fees. You will almost certainly lose in court if you have not followed the procedure.
your responsibilities don't change though and the burden of proof still remains the same, you are right though a pre condition report would protect against spurious claims, not following procedure wouldn't be sufficient for you to lose the case, it would still have to be evidence based, for example if your neighbour claimed that cracks in their wall was down to your work and they had previously been painted over, their case would fail regardless of whether you had invoked the act or not

A court injunction is only required to stop the work. Action for damages is much easier and well within the scope of most homeowners.

If in doubt employ a local independent party wall surveyor, one regulated by a professional institution such as the RICS (others are available) or your architectural designer may be able to undertake the role, they might be cheaper than you thought. It really doesn't have to cost that much if the neighbours aren't already at war and looking to score points.
Under normal circumstances yes but the neighbour has the vultures circling, who will have spun them all sorts of !!!! and bull.

If the OP generally gets on with their neighbours ok then talk to them express your concerns and see if you can come to an agreement to use someone local. Again apologies for the red, but it helps put points against the relevant points made.

MisterBaxter

Take a look at http://partywallsolicitor.com, there are some interesting cases that have already been decided in Court and are definitely worth looking at for anyone who ever offers advice on Party Wall matters even if they aren't acting as a surveyor or for those planning to do work and are thinking of just avoiding the issue of PWA. What is clear is that the Courts don't take kindly to people who don't make proper use of PWA.

1. An over the fence verbal agreement does not satisfy the provisions for a Notice/Award under the Party Wall Act, it must be in writing. (even if you get on with your neighbours it's best to get a signed agreement if you want to avoid future problems)
2. Failure to serve the proper notices does not deny the Adjoining Owner their rights under the Act (a defendant actually tried this in court and got shot down by the Judge). This sort of makes sense because if simply not serving notices killed the provisions of the Act no-one would ever serve notices and just rely on good building practices.
3. The Adjoining Owner is very likely to be granted a 'Without Notice' injunction where there is no Party Wall Award in place (dealing with this could well be more expensive than the Party Wall surveys would have been if done at the outset and you may still have to serve notices and comply with the PWA)
4. Notices CAN be issued post commencement, there are a couple of cases shown where they were issued post injunction as a means to partially satisfy the injunction (you now have the cost of the PWA and injunction and you can put money on the fact that the Adjoining Owner isn't going to simply consent at this stage).
5. An injunction can be obtained post completion of the works, there is one case listed where the extension was actually complete, the judge ruled that it wouldn't be proportional to demolish so awarded significant (in my opinion) damages in lieu, this was also the case where the Building Owner claimed there to be an agreement but it was an 'over the fence' verbal agreement so in the view of the Court not valid.
6. Not having an agreement in place seems to place the defendant on the back foot in Court and there are cases where it has placed a greater burden of proof on the defendant than would have otherwise applied.

Quite a few of these surprised me, because like many others I always felt that the PWA was a nuisance and without teeth. It is true that if you don't serve notices you aren't going to get a knock on the door from the police as it is not criminal but you do open yourself up to legal problems if the Adjoining Owner decides that they are not happy with any aspect of what you are planning to do or have done. These are civil matters but will still end up being costly and time consuming.

As a professional I have always advised clients to go through the proper PWA process, I prepare the notices and wherever possible serve them in person, having a chat with the other person over a coffee, where neighbours get along it usually results in a signed Award. For anyone who is advising clients be warned, if you fail to give proper advice or simply suggest that a client ignores PWA you could be leaving yourself open to negligence claims where your client seeks to recover their losses if the neighbour applies for an injunction (assumes the client has an expectation that you are acting in a professional capacity in giving advice).

THE IMPORTANT BIT -
These matters will only become a problem if the neighbour takes issue with something you are doing or have done but where companies like the one mentioned by the OP come into the picture they may open this can of worms as a means to creating work for themselves. If companies like this are trawling planning sites for possible client lists it is only a matter of time become they become 'Injunction Machines'.

MisterBaxter

As I see it the absolute worse case for the OP is as follows and assumes that the neighbour and their surveyor are competent and aggressive or that neighbour is weak and does as their surveyor tells them.

1. Neighbour informs OP of their obligations under PWA, OP either complies or ignores.
2. OP ignores and commences work, neighbour writes to OP again to remind them of their obligations under PWA and suggest that they cease work until PWA is complied with along with the threat of injunction if they don't.! OP either complies or ignores.
3. OP ignores and continues with work, neighbour applies for injunction. Ignorance of the law is not an excuse but the OP can't even claim ignorance as they have shown blatant disregard having being warned twice of their obligations. Court grants injunction and now requires! OP comply with PWA.(case law exists)
4. OP serves notice,! defecto position is dissent as matter has already been to Court and PWA is now being followed under Court instruction.
5. PWA Award made, injunction is lifted and works proceed to completion.

OP has still had all of the costs associated with PWA as they would have had if notices had been served at the outset but now has the additional costs of the injunction and has a completely destroyed relationship with neighbour. Don't forget the additional builders costs for Prelims or postponement, the builder may have also moved on to another job and now can't complete the works for a while.

In writing this I am starting to think this is a very easy way to make money, if only I were a complete git, particularly having read these forums and seen just how many people have a blatant disregard to the requirements of the PWA.

If there are more of these surveying firms coming to the market it could be the next injuries claim! type industry in the making.

chappers

MisterBaxter wrote: »

Take a look at http://partywallsolicitor.com, there are some interesting cases that have already been decided in Court and are definitely worth looking at for anyone who ever offers advice on Party Wall matters even if they aren't acting as a surveyor or for those planning to do work and are thinking of just avoiding the issue of PWA. What is clear is that the Courts don't take kindly to people who don't make proper use of PWA.

1. An over the fence verbal agreement does not satisfy the provisions for a Notice/Award under the Party Wall Act, it must be in writing. (even if you get on with your neighbours it's best to get a signed agreement if you want to avoid future problems)
2. Failure to serve the proper notices does not deny the Adjoining Owner their rights under the Act (a defendant actually tried this in court and got shot down by the Judge). This sort of makes sense because if simply not serving notices killed the provisions of the Act no-one would ever serve notices and just rely on good building practices.
3. The Adjoining Owner is very likely to be granted a 'Without Notice' injunction where there is no Party Wall Award in place (dealing with this could well be more expensive than the Party Wall surveys would have been if done at the outset and you may still have to serve notices and comply with the PWA)
4. Notices CAN be issued post commencement, there are a couple of cases shown where they were issued post injunction as a means to partially satisfy the injunction (you now have the cost of the PWA and injunction and you can put money on the fact that the Adjoining Owner isn't going to simply consent at this stage).
5. An injunction can be obtained post completion of the works, there is one case listed where the extension was actually complete, the judge ruled that it wouldn't be proportional to demolish so awarded significant (in my opinion) damages in lieu, this was also the case where the Building Owner claimed there to be an agreement but it was an 'over the fence' verbal agreement so in the view of the Court not valid. I would like to see this case , I suspect that there must have actually been damage or detriment caused to the property or the neighbour as there is no provision in the act for penalty for non-compliance, this is clearly stated within the act and the accompanying notes.
6. Not having an agreement in place seems to place the defendant on the back foot in Court and there are cases where it has placed a greater burden of proof on the defendant than would have otherwise applied.
Probably true but it is still a burden of proof and any claims would still have to be evidence based and as above there can be no provision for penalty or claim simply for not invoking the act

Quite a few of these surprised me, because like many others I always felt that the PWA was a nuisance and without teeth. It is true that if you don't serve notices you aren't going to get a knock on the door from the police as it is not criminal but you do open yourself up to legal problems if the Adjoining Owner decides that they are not happy with any aspect of what you are planning to do or have done. These are civil matters but will still end up being costly and time consuming.

As a professional I have always advised clients to go through the proper PWA process, I prepare the notices and wherever possible serve them in person, having a chat with the other person over a coffee, where neighbours get along it usually results in a signed Award. For anyone who is advising clients be warned, if you fail to give proper advice or simply suggest that a client ignores PWA you could be leaving yourself open to negligence claims where your client seeks to recover their losses if the neighbour applies for an injunction (assumes the client has an expectation that you are acting in a professional capacity in giving advice).

THE IMPORTANT BIT -
These matters will only become a problem if the neighbour takes issue with something you are doing or have done but where companies like the one mentioned by the OP come into the picture they may open this can of worms as a means to creating work for themselves. If companies like this are trawling planning sites for possible client lists it is only a matter of time become they become 'Injunction Machines'.

The last bit is the most worrying, these [STRIKE]companies[/STRIKE] Parasites will do everything they can do to invoke the PWA, (going to court for an injunction may as you say become the vehicle to achieve this), and get their pound of flesh, unfortunately they use both the legitimacy and weaknesses in the act to fulfil their aims.
The act was very badly thought out at its inception.