Party Wall Agreement - Opinions sought

Rdwill

So here's the next stage, I have just received an email off the Party Wall Surveyor stating

"Dear 

I have received an email regarding protection of the adjoining owners conservatory roof. I wonder if you could ask your contracts to ensure that the glazing ic covered / protected when they are working above it. 

Thanking you in advance."

To which I blew my stack a little bit and responded

"Dear

I received an whatsapp message on Monday from Neighbour which said "The workers should cover the conservatory glass as per award. look at the dust on it.

Which I chose to ignore, there is going to be dust created as with any construction site, which incidentally was washed of last night by all the rain. However, if there is dust when we finish the external works I will wash it off out of courtesy. The workers were nowhere near the Party Wall, so in my view the Party Wall Award does not apply.

On the day of the text the workers were working from their scaffold on the installation of the RSJ, and not working ‘above’ the conservatory, nor anywhere near the Party Wall.

 

Incidentally, when they removed the tiles from the East Wall, they did put a sheet over the conservatory glass.

I must say I’m a little confused with my responsibilities detailed in The Award

The Award states

The Works to be Carried Out

2.   That following  service  of this signed Award, the  building owner  may carry out the following works ('the Works'):

(a)          Cutting chases in to the party wall to receive pipes and wires.

(b)          Fixing Cupboards to the party wall.

(c)          Cutting a  flashing  in to the  external  brickwork  on the  outer face  of the  rear elevation.

(d)          And that the above-mentioned works are subject to the Act's provisions, and as set out in the appended "Further Information" document .

And

This Award does not apply to any other works that the Building Owner may be conducting. Any works specified in this Award are also subject to the provisions of the Act.

So my reading is that the Award only applies when we are carrying out the 3 jobs that are specified. Of which we have not done any of these, apart from to fold up the existing lead flashing.

If we are doing other work on the site which does not involve the above activities, then Common Law or Local Council Regulations ‘dust, noise’ etc may apply, but not the Party Wall Act.

So just for clarity, does the Award cover any work that we are doing anywhere on site, regardless of its proximity to the Party Wall and whether that work was specified in the Party Wall Award?"

To which the surveyor replied

"Dear XXX,

That's fine. I was merely passing on the message.

Regards"

 

Note how he doesn't answer my question.

I'm a bit angry at the moment as you can probably tell, the neighbour obviously got no reaction from me, so decided to poke the surveyor with a stick instead.

I will calm down before I respond to the surveyor, but suggestions welcome

Mojisola

Rdwill said:

I sympathize about the concrete dust and I will offer to wash it off once the external works are finished, but I suspect it will have rained by then and the problem will have gone.

Take photos of the area before and after so you have evidence if she claims that you damaged something while cleaning the roof.

Doozergirl

You've interpreted correctly.  

I don't know what to say.   You're going to need to tell the neighbour to foxtrot oscar in the nicest way possible.   You should have done it at the beginning before you spent £2k giving her a document to misinterpret, but we are where we are.  

Maybe speak to the PWA who has had enough of your money and clarify what you were trying to clarify AND that there is no need for them to be involved anymore.  You want them to make that clear to the neighbour too.  

Rdwill

Well I spoke to the surveyor, he clarified that it was only items mentioned in the Award that would be covered by the Award which was helpful.

I think he's getting fed up with the neighbour too as he said he was going to start charging her.

So next time he emails, I will ask him to specify which item a-c,

(a)          Cutting chases in to the party wall to receive pipes and wires.

(b)          Fixing Cupboards to the party wall.

(c)          Cutting a  flashing  in to the  external  brickwork  on the  outer face  of the  rear elevation.

He is referring to before I take the time to formulate a response. I will ask the same question of the neighbour, but I think she has given up talking to me as I didn't respond to her text.

Rdwill

I have tidied up my list of grievances with the Award detailed above and my general experience of the Party Wall Act. Just for the record I would like to post them on the thread. Thank you.

A summary of Grievances

1.       The date relating to the Service of Notice in the Award, stated as the 19th January 2021, is incorrect. We are aware this is a drafting error, however,

a.       Considering the amount of effort and emphasis that was placed on ensuring the date on the Notice of Service was the same as the actual date of Service, with the inference that the Service would be invalid if the dates were not correct, we are surprised this meticulousness does not carry through to The Award document.

b.       The Notice was Served on the 25th January 2021.

c.       The Service of Notice date forms part of the Recitals of the Award, this error means that the Award is incorrect ‘on the face of it’. This error would leave the Award open to challenge and may make it invalid.

d.       This displays a poor checking and proof-reading process.

 

2.       The inclusion of the Clause regarding the painting of the wall facing the Adjoining Owner’s property in the Further Information section,

‘The building owner will ensure that the altered exposed gable end facing the adjoining owners [sic] property will be finished and decorated to match the existing in every respect’

should not be in the Party Wall Award.

a.       This wall is not part of the Party Wall, it is a wall wholly owned by and on the Building Owner’s property.

b.       The decoration of this wall is covered by Planning legislation.

c.       The Adjoining Owner has pressurised the Surveyors into including this provision. In doing so, the Surveyors have given the Adjoining Owner the false view that areas away from the Party Wall are covered in the Party Wall Award.

d.       In ordering this remediation the Party Wall Surveyors are acting beyond their power, or ultra vires, and thus the clause is unenforceable.

e.       The inclusion of this clause calls into question the impartiality of the Surveyors.

f.        This clause tries to deal with matters outside of the Act. The inclusion of this clause in the Award could possibly make the whole Award invalid.

 

3.       The first two (of three) items in Clause 2 that make up the Works (*third item detailed in point 7 below).

(a)          Cutting chases into the party wall to receive pipes and wires.

(b)          Fixing Cupboards to the party wall. 

should not be included in the Party Wall Award

a.       The building owner only plans to put up ordinary cabinets and chase in ordinary wires to the Party Wall.

b.       There is no foreseeable reason why the work detailed in Clause 2a and b should have consequences on the structural strength and support functions of the Party Wall or cause damage to the adjoining owner’s side.

c.       Both properties are well built and in a good state of repair.

d.       The surveyors are including and charging for work that is not reasonably necessary as well as placing additional stress on the Building Owner.

 

4.       Clause 3 and 4 refer to the works set out / itemised in Clause 1 {sic}, this should read Clause 2. Whilst this is a minor drafting error.

a.       These errors make the Award harder to read and understand, particularly for a layperson, who may not be comfortable reading contract documents.

b.       Again, this displays a poor checking and proof-reading process.

 

5.       The capitalisation of the defined term ‘Works’ seems to go astray throughout the document. For example – ‘FURTHER INFORMATION - This Award does not apply to any other works that the Building Owner may be conducting. Any works specified in this Award are also subject to the provisions of the Act.’

a.       This makes the document problematic for a layperson to understand and facilitates confusion, misinterpretation, and ambiguity in the reader.

b.       We would suggest using a different word to works when referring to jobs that are not ‘Works’. Maybe jobs?

c.       In our opinion, this displays a poor checking and proof-reading process.

 

6.        It is evident that the contents of the Award had not been explained to the Adjoining Owner either at all or in terms that they understood. This led to the Adjoining Owner taking it upon herself to confront the building staff and have an altercation with one of the Building Owners regarding her (understandable) misinterpretation of the Award.

a.       The FPWS Guide to Code of Conduct states that ‘Matters relating to the Act’s procedures should be clearly explained to an appointing owner from the outset, so that the parties have an understanding of what is involved in the process of making an award, and what they can and cannot expect from that process.’

b.       The Surveyors should have taken the request by the Adjoining Owner detailed in point 1 above as an opportunity to explain the Party Wall Act and Award to the Adjoining Owner.

c.       This lack of explanation and clarity on behalf of the Adjoining Owner has caused both the Adjoining Owner and the Building owner a lot of unnecessary stress and friction.

d.       The Building Owner took it upon himself to explain the contents of the Award and when it applied to the Adjoining Owner, which seemed to appease her, although not satisfy her.

e.       The Building Owners’ do not consider it their role to explain the Party Wall Award to the Adjoining Owner and are disappointed that the professional employed to represent the Adjoining Owner had not taken the time to do this, especially considering the fee charged.

 

7.       Without going too far into costs we would like to state that

a.       The Award document produced, the lack of explanation to the Adjoining Owner and the general engagement does not correlate with the expectation of the £1,682.26 (£1,232.26 and £450 respectively) that was spent on this Award.

b.       The sum charged seems a lot of money for potentially cutting less than 100mm from the external face of the Party Wall to insert some flashing (*the third item in the Award).

(c) Cutting a flashing in to the external brickwork on the outer face of the rear elevation.

A task that should not take any more than five minutes to complete.

c.       Is this really the intention of The Royal Institute of Chartered Surveyors, The Faculty of Party Wall Surveyors and The Party Wall Act?

 

8.   Our final complaint is that we are apprehensive about bringing forward our grievance, not because it is inaccurate or unsubstantiated, but because    

a.       Your members have portrayed themselves as being prepared to act beyond their remit and powers and make uncertain statements to get their desired outcome.

b.       As part of the investigation the surveyors will have to be made aware of our criticism. Even if their regulatory bodies find against them, their ‘quasi-judicial’ role means that they cannot be removed from our project.

c.       The whole Award could be found invalid, we believe only a court could determine that. But where would that leave us? With another bill for c£1.7k and 2 months added to our program?

d.       At the time of writing our building work is ongoing and there is still the potential for the surveyors to involve themselves in our business. (And we are not actually sure when our relationship with the surveyors ends).

e.       We would prefer to make our complaint once our association has ended in case there are repercussions and vindictiveness.

f.        If any of our complaints are found to be upheld, particularly the two involving ‘sharp practise’ as opposed to poor drafting / incompetence, then we will be stunned that two of your surveyors have been complicit in the above allegations.

g.       We wonder if there the regulators have any kind of ‘whistle blowing’ policy with regards to one surveyor being concerned about the actions of another?

Doozergirl

You've wasted so much time on this.  

What are you asking for from this list of grievances? I hope there's a point to it, otherwise it's just time spent thinking about things that make you miserable, which erm, makes you miserable.  A waste of more valuable time. 

Rdwill

This will form my opening shot if the PWS come around again fishing for more money, and I hope it warns others about what is out there,
But I get your point 

Thanks