Party Wall procedures are naturally governed by the Party Wall etc act 1996, however, when the Surveyors or the owners are unable to agree on matters, naturally they will end up presenting and fighting their case in court.
I am going to be looking at the recent case of Amir-Siddique vs Kowaliw 2018.
In 2008, Kowaliw the building owner, proposed to undertake a loft conversion and chimney breast removal to their home which was a semi-detached house.
Kowaliw wanted to avoid the cost and delay of the Party Wall procedures and ideally didn’t want to have a Party Wall Award, also known as a Party Wall Agreement in place between themselves and their neighbours and adjoining owner, Amir-Siddique.
In my opinion, this is wrong, Party Wall Notices must at least be served to enable the correct procedures to be followed. These would include giving the adjoining owners the right to wither consent or dissent to the Party Wall Notice.
Not following these procedures, Kowaliw prepared a simple written document, requesting Amir-Siddique to sign and return it giving their consent to the works. The condition laid out in the written document were subject to photographs being taken by Kowaliw of Amir-Siddique property before the works commenced.
In Party Wall Surveying terms, the building owner was effectively asking the adjoining owner to agree to a Schedule of Condition Report undertaken pre work.
Ultimately, Amir-Siddique was willing to proceed in this manner and they agreed to the informal procedures facilitating Kowaliw’s works.
Jump forward to 2016, Amir-Siddique had now decided to undertake their own loft conversion in a similar fashion to Kowaliw’s 2008 works.
Amir-Siddique served a Party Wall Notice upon Kowaliw.
Kowaliw delayed their Party Wall Notice response for various reasons such as going on holiday for at least 6 weeks. This is well beyond the said time period granted by the Act which is actually two weeks.
There were also various neighbourly discussions regarding the location of the loft dormer, the RSJs (steels) being inserted into the Party Wall and other matters.
Finally, around 12 weeks later, Amir-Siddique contacted a Party Wall Surveyor requesting he re-serve the Party Wall Notice upon Kowaliw. Upon receipt of that new Party Wall Notice, Kowaliw formally responded by dissenting and appointing their own Party Wall Surveyor to act on their behalf.
At this point, Amir-Siddique remained very concerned as to the cost of the Party Wall process, so they got in touch with Kowaliw’s Party Wall Surveyor and queried his fees. Amir-Siddique were not reassured, as the Party Wall Surveyor stated that the costs could be considerable and that the process could or may take months.
With knowledge of this, Amir-Siddique requested that Kowaliw’s Party Wall Surveyor acted as the Agreed Surveyor in order to reduce the costs slightly and allow one Surveyor to act impartially on behalf of both owners.
Kowaliw’s Party Wall Surveyor confirmed that he could only act as an Agreed Surveyor if Kowaliw were in agreement to him doing so.
The Party Wall Surveyor contacted Kowaliw who confirmed that they were unwilling to allow their Surveyor to take on the Agreed Surveyor role.
After further issue and dispute, a Party Wall Award was agreed and served which awarded all of the Surveyor costs against Amir-Siddique.
Upon receipt of the Party Wall Award, Amir-Siddique appealed it on the grounds of the Kowaliw’s refusal to agree to an Agreed Surveyor appointment, ultimately resulting in higher fees.
Upon hearing the case, the judge ruled that due to Kowaliw’s refusal to an Agreed Surveyor appointment, they had to pay a portion of the total Surveyors’ fees.
Principles to take from this Case
Had both owners Kowaliw and Amir-Siddique gone through Party Wall procedures for both of their respective works, this would likely have never lead to a dispute. However, the fact that Amir-Siddique agreed to Kowaliw’s 2008 works, to later then find themselves in a position whereby the gesture wasn’t reciprocated in 2016 likely lead to a lot of the drive to take this to court.
Party Wall procedure should always be followed, Party Wall Notices are designed to be owner served, here at Berry Lodge we have free Party Wall Notices and would encourage service even when both owners are in agreement to the works. This will ensure the correct paper work is always in place and the legal requirements are met.
Agreed Surveyors, Agree or Not Agree?
Regarding Kowaliw’s refusal to appoint an Agreed Surveyor, I am of the opinion that any owner is given the rights under Section 10 of the Party Wall etc Act 1996 to appoint either their own Surveyor or an Agreed Surveyor to resolve the Act’s dispute.
There are no particular provisions that provide guidelines on when an Agreed Surveyor or two Surveyors should be appointed. That being said, in my experience, with simple jobs such as loft conversions or conventional rear extensions, the works are straightforward enough for an Agreed Surveyor to resolve the dispute and agree the Party Wall Award.
Therefore, you would likely appoint two Party Wall Surveyors when more complex jobs arise such as basements or underpinning. Though this is simply a matter of opinion and I am also of the firm view that to your more experienced Surveyors, basement works would be as straightforward as loft works.
This case just goes to show, that even the widely accepted most simple of sections and understandings of the Act can change at any point.