The Party Wall and Related Act of 1996: Intention vs. Reality
The Act’s intent and the actions of those charged with enforcing it are diametrically opposed.
This article examines the Act’s intent, and it is critical that this is understood so the surveyors that administer this can be held accountable. Relying on surveyors who’ve already forgotten the purpose of the Act is risky. It results in unnecessary fees, excessive fees, overzealous behavior, dispute generation, and process abuse.
To understand the intent of The Party Wall Act , it is necessary to go back to January 31, 1996, when the Party Wall Bill was introduced to the House of Lords by the Earl of Lytton, who stated, “The Bill is a safety net, not a fiery hoop.”
Many building owners, builders, and developers, who are frequently frustrated by a costly and complicated process, will not recognize this. The question is, who is complicating matters? Adjoining Owner surveyors have requested monitoring and security for loft construction costs. A surveyor has requested that brick be sent to his office for analysis prior to the start of work so that he can be certain that the party wall will be raised in the same material as the existing one. For many, the Party Wall Act is a fiery hoop to jump through, with spectacular acrobatic maneuvers required to win that elusive award. It is founded on the supposition of voluntary agreement between parties and where ever possible; it provides for notice where works are proposed; there is an opportunity to respond and comment; it seeks to protect existing structures; there is a clear liability for damage and making good; there is provision for resolving disputes other than through litigation, and it specifies how costs of work will be calculated.
The principle of voluntary agreement has long since been abandoned by the party wall process. Party wall surveyors typically work on the assumption that they will handle matters without consulting with the appointing owners. Too often, appointing owners are left out of the process, which can be costly and result in third-party referrals, ex parte awards, and litigation. The phrase “surveyor-driven disputes” is becoming more popular.
Section 10 of the Act deals with the ‘resolution of disputes,’ according to the Earl of Lytton: ‘Clause 10 deals with the resolution of disputes. In this case, both parties can agree on the appointment of a single surveyor. That is a strongly recommended step…’
The appointment of a single surveyor is not ‘strongly’ advised. An article titled ‘The Failure of the Agreed Surveyor Appointment’ (Mackie 2020) investigates why these one-surveyor appointments are so infrequently; and used. It concludes that the use of agreed surveyor appointments should be increased, but that this will be difficult because those who administer the Act will lose money if they become more common. The industry stands to lose a lot of money, and there’s little incentive for a surveyor to give honest advice when it means losing their fee.
Party wall surveyors have a quasi-judicial duty. As statutory surveyors, they have a duty to act properly in the interests of both parties once appointed, which is a critical safeguard. According to past experience, the vast majority of disputed cases are resolved through an agreement between surveyors. ‘In most cases, the building owner pays for the adjoining owner’s surveyor. But that does not give you the right to charge exorbitant fees…’
Excessive fees are one of the industry’s most serious issues. Excessive fees include unnecessary fees such as unnecessary final inspections and pointless comments on draught awards, as well as charging £300 plus vat per hour for travel and 11 pence per piece of paper to cover printing costs. The fact that the building owner hasn’t been charged for the office cookies is sometimes the only surprise.
Party wall surveying is profitable, and many surveyors do not miss a beat when it comes to charging the highest fee they believe they can get away with. The third surveyor’s safety net is supposed to prevent extremely high fees; however, that comes at a cost, so more money ends up in the pockets of the surveyors who are asked to decide whether one of their colleagues is being greedy. It’s difficult to explain that logic.
It is disheartening to see such a wide disparity between what was intended and what the public actually experiences. Some commentators will point to the low appeal rate of awards, but winning an appeal can cost anywhere between £15,000 and £35,000, and losing one costs significantly more (Nicholas Isaac QC). Surveyors can act in ways that make a mockery of the Act, knowing that appeals are expensive and rare. Professional bodies, surveyors, and the general public should collaborate to better understand the Act’s intent and how to best carry it out. It must become the safety net that it was intended to be.