A Third Surveyor is a very unique role and comes into play when called upon by the building owner, the adjoining owner, the building owner’s Surveyor or likewise the adjoining owner’s Surveyor.
The Third Surveyor’s role is to determine any matter that is in dispute between the parties under the realm of the Party Wall etc. Act 1996.
Although some may frown upon the description, I feel that the easiest and simplest way of describing the Third Surveyor is a sort of arbitrator or quasi arbitrator.
In appropriate circumstances, the Third Surveyor can make and serve party wall Awards in respect of the subject matter of any party wall dispute and any such Awards are subject to the same rights of appeal as with any other party wall Award as set out by Section 10(17) of the Act.
Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award and the county court may— (a) rescind the award or modify it in such manner as the court thinks fit; and (b) make such order as to costs as the court thinks fit.
By virtue of the provisions of Section 10(1)(b) of the Party Wall Act 1996, a Third Surveyor is selected by the two appointed party wall Surveyors (the building owner’s Surveyor and the adjoining owner’s Surveyor) in relation to the party wall dispute.
Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either— (a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).
Furthermore, he or she is authorised to resolve any disagreement or issue referred to him or her by the appointed Surveyors or by their appointing owners.
Section 10(2) of the Act goes on to confirm, that once a Third Surveyor is agreed upon, the appointment can no longer be rescinded:
All appointments and selections made under this section shall be in writing and shall not be rescinded by either party.
The Act therefore confirms that the only way a Third Surveyor can be changed is if he or she refuses to act, neglects to act within 10 days, dies, or is incapable of acting before the dispute is settled.
In the case of Reeves v Young & Antino 2017, a Third Surveyor was selected by the building owner’s Surveyor and the adjoining owner’s Surveyor in writing, with that selection being confirmed to the respective owners. This was a normal and conventional approach and procedure at this stage.
However, the building owner’s Surveyor and the adjoining owner’s Surveyor later decided that a different Third Surveyor should be selected to ensure a conformed approach, noting that they selected the same Third Surveyor for the building owner’s other neighbour/adjoining owner. The latter Third Surveyor selected was Mr Antino.
In due course, a party wall Award was made and served by the building owner’s Surveyor and the adjoining owner’s Surveyor, authorising the building owner’s proposed notifiable works.
It is worth noting at this point that neither parties (the building owner or the adjoining owner) appealed that Award, and it is worth further noting that the Award referred to Mr Antino as the selected Third Surveyor.
Miss Reeves (the building owner) acted upon the Award and undertook the notifiable works, at which point a dispute arose between the parties, with that dispute being duly referred to the second selected Third Surveyor Mr Antino.
Mr Antino determined the matter in dispute within a Third Surveyor’s party wall Award. He served that Award upon the parties and thereafter sought to enforce payment of his fees for his services.
The Award was challenged as having been made without jurisdiction, on the basis that the original Third Surveyor (not Mr Antino) had been properly selected and therefore Mr Antino had no jurisdiction or authority to act, thereby making his Award invalid.
Mr Antino disagreed and pursued his costs via the Magistrates Court.
The building owner sought a declaration of invalidity from the County Court.
The building owner was successful in her application and the Court held that the two Surveyors (the building owner’s Surveyor and the adjoining owner’s Surveyor) were not entitled to select a new Third Surveyor, thereby making Mr Antino’s standing invalid.
This didn’t stop here, Mr Antino then appealed to the High Court further arguing his case. This was also rejected, leaving Mr Antino with no formal standing and no grounds to recover his fees and any subsequent costs, which I suspect were incredibly high at this point.
The result of this judgment is two fold, first and foremost it is a firm reminder that the provisions of the Act governing the appointment of party wall Surveyors and selection of Third Surveyors must be scrupulously followed. Failure to comply will result in an invalidated Award costing money and time.
Secondly, it confirms that an Award, even if it is outside of the appeal period as confirmed by Section 10(17) of the Act, can still be declared invalid by the County Court.
This case goes to show, that even the simplest of party wall actions can have a very significant reaction. Getting the paper trail right is of the upmost importance and should be handled diligently in each and every case.