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Why You Can’t Say “You’re Fired!” to a Party Wall Surveyor

Thursday, 2nd November 2017 | by: Justin Burns

Imagine having a job from which you cannot be dismissed – that must be the dream of many people. Well, that is exactly the position that appointed party wall surveyors find themselves in. Section 10(2) of the Act confirms that ‘All appointments and selections made under this section shall be in writing and shall not be rescinded by either party“. Take that Lord Sugar!

The only scenario in which an appointed surveyor can be replaced is where they have either declared themselves ‘incapable of acting‘ or have died as confirmed by section 10(5) of the Act. The situation is slightly different where one surveyor has been appointed by both owners in the dispute i.e. as Agreed Surveyor. In that scenario either owner may serve a request on the Agreed Surveyor and should that surveyor either refuse or neglect to act upon that request within a period of 10 days proceedings ‘shall begin de novo’ (start over). That would allow the owners to appoint a different Agreed Surveyor or indeed separate surveyors.

Occasionally a surveyor will agree to stand down (or technically declare themselves ‘incapable of acting‘) when the relationship with their appointing owner has broken down and they are at the end of their tether – it normally comes with the condition that fees incurred to date are paid up. This may sound disingenuous as the surveyor is clearly not incapable but the Act doesn’t say they must be incapable but merely declare that they are so (for more on this see the case of Property Supply & Development Limited v Verity & Verity [2005] .PDF).

I will occasionally receive a call from an owner telling me that they’ve fallen out with their surveyor and they would like me to take over and are disappointing to hear that it’s not as simple as that. I will always ask to be provided with a copy of the previously appointed surveyor’s letter declaring themselves incapable of acting so that I can satisfy myself that my appointment will be valid.

Occasionally a situation arises where an appointed surveyor goes missing (that might be because they have moved firms, become unwell or are just burying their head in the sand because the situation has moved beyond their sphere of experience) and cannot therefore declare themselves incapable of acting. If they are the Agreed Surveyor they will obviously fail to respond to request from the owners and can be replaced but if they act for just one of the owners they will remain appointed indefinitely.  To prevent the process from stalling there are a couple of options available to the other party’s surveyor – they can either ‘proceed ex parte (on their own)’ and serve an award following a request made in accordance with section 10(7) of the Act or ask the selected Third Surveyor to enjoin with them and serve an award in accordance with section 10(10) of the Act. That’s why it is so important for the 2 surveyors to select a Third Surveyor as soon as they are appointed.

So, I look forward to the day when I finally get the call from Lord Sugar asking me to act for him in a particularly contentious party wall dispute and I get to say “Fired? Sorry Lord Sugar but according to section 10(2) of the Act …”.