PARTY WALL COMMENT

Appointments

Hopefully all Surveyors administering the Act are familiar with the basic procedures of serving Notices and dealing with the occasional lack of response but is the process as straightforward as it might first appear?

In a typical situation the Building Owner or his representative serves a valid notice ie signed, dated and containing the information required by the Act and fourteen days later, if there has not been a response, a letter is then sent to the Adjoining Owner advising him that a dispute is deemed to have arisen and he must, therefore, within ten days, appoint a surveyor.

The Building Owner is in a hurry. Time is of the essence. He regards the procedures of the Act as expensive and annoying. He has obtained Planning and Building Regulation consents. He wants to start work. Now! The Building Owner’s Surveyor, ever conscious that his appointing owner might jump the gun and with the clock ticking down to the end of the ten day period, contacts a respected Surveyor of his acquaintance and ascertains whether he could act swiftly and effectively. Ten days elapse and having obtained the necessary authority, the Building Owner’s Surveyor appoints a surveyor on behalf of the silent Adjoining Owner and notified the parties of that appointment.

The Surveyor appointed under Section 10 (4) diligently commences work. A few days later another Surveyor, appointed under Section 10 (1) (b) notifies the Building Owner’s Surveyor of his existence, sending a photocopy of the “ten day” letter with an undated, unsigned manuscript note purporting to have been written by the Adjoining Owner many days before. A contradiction is now apparent.

The Building Owner’s Surveyor has scrupulously followed the provisions of the Act but there are now apparently two Adjoining Owner’s Surveyors, one of them must presumably stand aside. The riddle is solved, according to two eminent members of our Club, by acknowledging the valid appointment held by the Adjoining Owner’s Surveyor under Section 10 (1) (b) and 10 (2). It follows that since the appointment is valid the second appointment, made under 10 (4), must be valid.

In the circumstances described further interesting points are raised. There is no requirement in the Act for an appointed surveyor to notify the other party of his appointment, nor does there appear to be a time limit by which notification of appointment is to be made. It might be possible to employ the provisions of Section 10 (6), in this case, by the Building Owner’s Surveyor. Taking no action however, is neglect rather than refusal. Neglecting to act effectively falls within the scope of 10 (7) but this sub-section is contingent upon a request having been made by the Building Owner. Whilst there must be a temptation to draw a line after ten days by reference to 10 (6) or possibly 10 (7) strict interpretation of the wording makes the outcome uncertain. In any event why should the Building Owner be forced to delay his work by a further ten days?

The only safe option appears to be following the procedures laid down in the Act and compensating the surveyor appointed under Section 10 (4) for his time. By failing to proceed in a sensible and logical manner the Adjoining Owner’s Surveyor is likely to have caused the Building Owner loss and expense and, having behaved to all intents and purposes negligently, should therefore compensate the Building Owner for any loss thereby incurred including abortive fees.

The situation described above would not occur if the Adjoining Owner’s Surveyor behaved sensibly and with respect for the parties. It would appear that greater protection should be offered to the Building Owner by amending the Act to include a requirement for appointment and notification to be within ten days.