How to Stack Your Party Wall Surveyor
It is commonly established that you cannot fire your party wall surveyor , but this piece calls that into question.
The definition of sacking is to dismiss or remove someone from their employment, and sure, it is feasible to fire a surveyor. According to Section 10(2) of The Party Wall etc. Act 1996, ‘all appointments and selections shall not be reversed by either party.’ The term’rescinded’ refers to the act of cancelling or revoking something. In ‘The Law and Practice of Party Walls 2nd Edition,’ Nick Isaac QC writes that ‘appointments under section 10 are irrevocable, and unless a surveyor is willing to declare himself incapable of operating, his appointing owner has no choice but to continue to engage with that surveyor.’
This is not totally correct, and is most likely expressed under the assumption that the surveyor is acting fairly and appropriately.
Section 10(2) is the reason surveyors will inform you that they cannot be fired. This is false, as Section 10(3) stipulates that if an agreed surveyor refuses or neglects to perform for a period of ten days beginning on the day on which either party serves a request on him, the proceedings for resolving such dispute shall begin from the beginning (from the beginning).
Section 10(3) is sometimes missed, however it is apparent that the Act allows for the dismissal of a surveyor. The circumstances under which removal may occur are limited to ‘neglect’ and’refusal,’ and it is critical that these two points are understood because they are extremely different. Also, section 10(3) applies only when an agreed surveyor is present; nevertheless, sections 10(6) and 10(7) apply to party appointed surveyors, and instead of starting from scratch, one surveyor may proceed to serve an ex parte award or act ex parte in relation to the subject matter of the request. For a surveyor to fail to act, a request must be made and ten days must pass.
If a surveyor refuses to function efficiently, the process can be restarted de novo if the surveyor is an agreed surveyor, or ex parte if he is one of two party-appointed surveyors. Refusal to act differs from neglect in that it is significantly more broad. The use of the word “effectively” in sections 10(6) and (7) softens the refusal (Bickford-Smith et. al. 2017). This is critical because it radically alters the meaning of rejection. For example, a surveyor who just refuses to take action because he believes he is correct when he is incorrect is failing to act effectively. A surveyor is not hired to make mistakes or to be wrong, and if a building or neighboring owner has hired a surveyor who is behaving unlawfully, assistance from another surveyor might be sought. A request to act effectively can be made, and if the surveyor refuses to act effectively, the process can be restarted from the beginning. This is fantastic news, as many parties are advised that once you choose a surveyor, you are stuck with him and your only option is to file an appeal in court (which can cost tens of thousands of pounds).
If an agreed-upon surveyor fails to perform for a period of 10 days, the process can be restarted. Neglect can be defined as either utter inaction or being evasive. The word ‘effective’ is key again, as it shifts the connotation from outright negligence to failing to perform anything successfully. Neglect is usually regarded as a single action, and if two surveyors are appointed and one fails to act, the other surveyor cannot serve an ex parte award covering all matters, but can only act ex parte in connection to the subject matter, e.g. if a surveyor fails to agree on enclosure cost, the other surveyor is free to establish the cost as he sees fit. He cannot, however, serve an ex parte award that covers other areas of the case since it would be going too far.
Sections 10(3), 10(6), and 10(7) might be intimidating for many people, and there may be debates over what constitutes neglect and refusal. One way to avoid these arguments is to simply repeal the Act entirely. This is basically what transpired in the case of Mohamed v Antino, where Judge Bailey stated, ‘Courts now are enjoined to facilitate private resolution of litigation disputes, and there is no clear reason why a different approach should be adopted to conflicts that fall within the 1996 Act dispute resolution mechanism.’
Surprisingly, the two parties can even hire a third-party wall surveyor on the condition that their dispute, and any future disputes, are resolved by their selected surveyor (or surveyors) through arbitration or agreement. Section 10 of the Act is repealed, and the violating surveyor is fired. Furthermore, no basis for dismissal is required; it is sufficient that the parties have opted to proceed through an agreement.
If a surveyor is behaving illegally, it is critical to seek counsel. Issues can be navigated deftly, such that a surveyor can be dismissed. If an agreed-upon surveyor is fired, the procedure is restarted, which might cause delays and frustrations; nevertheless, the surveyor is no longer participating. Taking advantage of section 10(3) of the Act is uncommon; nonetheless, it may and should be used more frequently. Surveyors like to hide behind Section 10(2) and assure everyone that they can’t be fired. That is incorrect. They can be, but there must be some justification. If the surveyor is behaving in a proportionate, suitable, lawful, and necessary manner, there can be no grounds for dismissal — and it is unlikely that there would be any reason to seek it. When there are two surveyors, the offending surveyor can be bypassed, either through an ex parte award or, perhaps more safely, through an award with the third surveyor. That amounts to dismissal from the process. Section 10(2) of the Operate protects surveyors who act appropriately, while clauses 10(3), 10(6), and 10(7) hold surveyors accountable.
Finally, the Act can be repealed entirely, and the parties to a dispute can address their differences outside of the Act. Surveyors can be fired, albeit it typically necessitates thinking outside the box; yet, there are solutions, and firing isn’t always tough.
You can contact us via our contact page and send us an inquiry, or you can call us at 03300101381.