Amir-Siddique-v-Kowaliw & Agreed Party Wall Surveyor
It is a staple of the Party Wall Act that the person instigating the work (The Building Owner) shall pay for all the cost involved in meeting the requirement of the act. This is one of those things that Building Owners don’t like as they have no choice over statutory appointments for the adjoining owner’s surveyor and more importantly the fees they charge. S10(13) states.
The reasonable costs incurred in— (a)making or obtaining an award under this section;
(b)reasonable inspections of work to which the award relates; and
(c)any other matter arising out of the dispute,
shall be paid by such of the parties as the surveyor or surveyors making the award determine.
It is well established that the Building Owner who is benefiting from the work should have to pay such costs.
Party Wall Fees
Party Wall Fees vary up and down the country and they range from about £100 to £350 per hour, depending on the location and having two surveyors to most awards can quickly add up it’s not unusual to see total fees of around £1,500-£3,500 for what is very minor works. Especially if you’re dealing with particularly picky adjoining owners or a lazy surveyor on either side. I will write another blog on Party Wall Fees and Ambulance Chasers style letters.
Back to the case, this case focuses on two neighbours one who built a dormer 10 years earlier without appointing surveyors and one who now wanted to carry out the same work, which is a pretty simple everyday occurrence in the UK.
Upon serving the Party Wall Notices on there Adjoining Owner the Building Owner once there was a decent (the reason for this isn’t clear but there was decent) asked if they would appoint there Party Wall Surveyor as an agreed surveyor which they refused and they wanted to appoint there own surveyor.
When the Building owner after speaking to his surveyor asked for the adjoining owner’s surveyor to become the agreed surveyor the adjoining owner once again refused.
This then left the Building owner with two surveyors when one would have done and they had given the Adjoining Owner the chance to pick them. This also meant there would be two fees to pay.
A Party Wall Award Was Served
After the serving of the award which awarded the costs against the building owner, the building owner felt that the fees were unreasonable given the low value of the works, the straightforward nature of them and the fact that they had offered an agreed surveyor. The Building owner appealed the costs element of the Award on 29 October 2016, within the 14 day period after service of the Award as provided by s 10(17) of the 1996 Act
The challenge consisted of three parts, two of which the court were not satisfied on, the 3rd and the point at which judgement was made was that the adjoining owner should be responsible for his own fees given the fact they had refused to appoint an agreed surveyor twice.
The Building Owners argument related to the £1,500 + Vat Fees to the adjoining owner’s surveyors and the £595 in Building Owners Surveyors Fee that they had to pay they sought to make the adjoining owner pay these fees on grounds of there unreasonable behaviour.
HH Judge Bailey deemed that the Adjoining owners surveyor’s fees had to be paid and that the Building Owner was responsible for these as they would have had to pay them if they were an agreed Surveyor anyway, but with some modification to the award under S10(17) he was able to order that the Adjoining owner should pay the building owner £595 to cover the fees charged by the Building Owners surveyor.
Thought’s to take away
This case isn’t perfect it is unclear if the building owners surveyor was duly appointed under S10(1a) this is mentioned in the judgement. If they where there is issues regarding the request for them to become an Agreed Surveyor was this legal as it is clear from S10(2) that they can’t be rescinded even on the grounds of cost a similar question needs to be asked of if the adjoining owner had already legally appointed under S10(1a) you couldn’t then reappoint them under S10(1b).
It is worth noting this is a county court case and doesn’t set a binding precedent for other courts, although it is a clear warning shot across the established notion that the building owner pays the fees.
This judgement can’t be used to strong-arm Adjoining owners into accepting a surveyor choose by the building owner but it should raise questions about if more agreed surveyors should be appointed for small domestic works, and the benefits for building owners in getting notices served in agency by surveyors rather than as a single matter.
So why not book your residential, dilapidation or commercial survey today, so we have another opportunity to use the pole cam, one of our services where the pole cam is particularly useful is our Listed Building Surveys and historic building consultancy
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