I’ve been meaning to write a post for a while that I could link to when an owner asks me to explain the role of the ‘Agreed Surveyor’ as it’s a difficult concept. The question tends to be asked by an adjoining owner who has already appointed me to act for them and has been approached by the building owner to ask if I’d be willing to act for both owners.
A building owner will tend to be in favour of appointing an Agreed Surveyor as the process is generally quicker (mainly because no time is spent moving documents around) and cheaper (one surveyor’s fee account to pay as opposed to two).
The option of appointing an Agreed Surveyor is confirmed in section 10 of the Act which states that where a dispute arises … both parties shall concur in the appointment of one surveyor or each party shall appoint a surveyor. So to have an Agreed Surveyor both owners have to agree to that dual appointment and of course the surveyor has to be willing to accept.
Whether one or two surveyors are appointed the rule of thumb is that the building owner pays the fees so the primary concern for an adjoining owner is whether a surveyor who is acting for both parties in a dispute can remain impartial. I believe they can so long as they understand the purpose of the appointment i.e. to resolve disputes.
In most cases the ‘dispute’ to be resolved is ‘deemed’ rather than specific and to clarify what a deemed dispute might cover we must look to section 10(12) of the Act:
(a) the right to execute any work;
(b) the time and manner of executing any work; and
(c) any other matter arising out of or incidental to the dispute including the costs of making the award;
In short, the award that settles the deemed dispute should facilitate the building owner’s lawful works but should do so in a way that limits the risk to the adjoining owner’s property and avoids unnecessary inconvenience to the occupants. So, while appointed surveyors should fully understand the circumstances and concerns of their appointing owners they should never act as agents. Once that distinction is made fulfilling the role of Agreed Surveyor becomes much easier.
Appointed surveyors often talk about acting ‘for the wall’ rather than for either owner and that can be a helpful analogy for owners but it’s not a phrase that you’ll find in the Act. In fact, the Act makes no reference to the impartiality of the appointed surveyors but rather covers that matter in the practicalities.
Section 20 confirms that an appointed surveyor cannot be one of the parties (i.e. the owners) to the dispute meaning that an owner cannot act for themselves. That exclusion in itself points towards the impartiality of the appointed surveyor but it has also been confirmed in cases such as Selby v Whitbread that the appointed surveyors act as arbitrators rather than agents whose duty extends to ensuring the rights of both parties are protected irregardless of which owner has appointed them (or apppointed them first).
When each owner appoints their own surveyor the two surveyors must immediately select a third and there can be benefits in having that practical tribunal assessing the issues; particularly if one or both of the appointed surveyors have limited experience. Where the owners appoint an Agreed Surveyor no Third Surveyor is selected. So long as the Agreed Surveyor is guided by the Act rather than the owners he/she should reach the same conclusion as a 3 surveyor tribunal.
Another difference between a surveyor appointed by one owner and a jointly appointed surveyor is in the procedure that is followed if he has to stand down. You should be aware that appointments can only be rescinded if a surveyor becomes incapable of acting so you cannot sack your surveyor no matter how much you disagree with his decisions. However, if he becomes incapable of acting through illness or worse and was appointed by both owners the process must start over whereas if one of the 2 surveyors stands down he is replaced and the process continues on.
You will generally find that the more experienced a surveyor becomes the more comfortable he is in taking on the role of Agreed Surveyor and the better an owner’s understanding of the Act the more willing they are to accept such. It can be a difficult line to tread and it’s not unusual for both owners to be left feeling that they’ve not got their way but that is often the inevitable consequence of making the correct decisions.