I recently bumped into an old acquaintance (adjoining owner) that had issues with building works next door to him. My old acquaintance related the following story to me:
1. He was notified of the neighbouring excavation and foundation works, under section 6 of the Party Wall etc Act 1996 (“the Act”). He appointed his own surveyor (adjoining owners’ surveyor), whilst his neighbour retained his own surveyor (building owners’ surveyor).
2. Under the requirements of the “Act”, both surveyors had selected a “Third Surveyor”, who in this instance was a very experienced and notable fellow of the Pyramus & Thisbe Club.
3. The works proceeded under an Award drafted by the two surveyors (adjoining and building owners).
4. However, there was damage to the adjoining owners’ property, as a direct result of the foundation works.
5. The building owners’ surveyor decided that he did not want to be involved in determining the extent of the damage, or even agree a financial settlement. The adjoining owners’ own surveyor stated that he had never been in this situation before, and therefore did not know how to deal with the issues.
My old acquaintance was now in a quandary, and did not know what to do.
It was very simple to deal with, but did require a certain amount of knowledge of the “Act”, which with all due respect these two surveyors obviously lacked.
My first suggestion to him was to get his (adjoining owners) surveyor to deal with the damage under a new Award, and also get his surveyor to appoint a structural engineer to monitor the damage over a period of time. All the (reasonable) costs and fees can been written in the new Award, that can be issued onto the Building Owner, exparte if necessary if the Building Owners own surveyor does not want to deal with the matter.
My second suggestion to him was that if his own (adjoining owners) surveyor found it difficult to deal with, for whatever reason, he can appoint the Third surveyor himself directly, in order to determine the damage. This procedure under the “Act” is rarely used, possibly because it requires the respective owners (building & adjoining) to have a certain understanding of the “Act”
I wished him well with his endeavours, and maybe when he bumps into me again in the future he will tell me of the outcome.
Disclaimer: It is important to remind everyone that the comments I make in this blog are my opinion, and should not be used as a basis of any legal definition or enactment, and the reader is advised to take their own legal advice for matters relating to their own circumstances.
Bernard, I wouldn't approach the Third Surveyor in this situation. Section 10(6) of the Act sets out what should be done if one of the appointed surveyors refuses to act.
ReplyDeleteThe Adjoining Owner's surveyor should write to the Building Owner's surveyor giving him a final opportunity to act but if he refuses the Adjoining Owner's surveyor should proceed 'ex-parte' and deal with the damage.
The Building Owner can appeal the 'ex-parte' Award if he thinks it is unfair.
Going to the Third Surveyor is an option but that generates additional fees which can't really be justified when there as another option available.
Thank you for your comment Justin.
ReplyDeleteThe point being, is the that AOS did not appear to know how to handle the situation. Therefore the only option available to my acquintance would be to approach the Third Surveyor. The damage to my acquiantance's house still needs to be dealt with, and cost of going to the Third Surveyor may in the long run be worth while, as one would expect the these costs to be Awarded against the Building Owner (i.e: the person(s) responsible for the works).