The Party Wall Act leaves it up to the surveyors to agree which of the owners should pay their fees (which must be reasonable) – in all normal circumstances that will be the owner benefitting from the works but what happens if those works do not proceed?
With the uncertainty that has plagued the economy over the last couple of years it has become more common for owners to have plans drawn up, serve party wall notices and then decide to either postpone or cancel their proposals.
Serving a party wall notice is not just a way of making your neighbours aware that you propose to undertake works, it is also the first step in a statutory process. The Act states that should your neighbour decide not to consent your notice they must either appoint a surveyor or risk having one appointed for them – you should not therefore be surprised if they take the matter seriously and do just that. There is no requirement under the Act for them to tell you immediately who they have appointed and it is standard practice for surveyors to respond to notices on behalf of their appointing owners. Likewise, when a surveyor is approached by an adjoining owner in receipt of a notice, they will take the matter seriously and act accordingly.
There is no provision under the Act for withdrawing a notice so it follows that there are no specific provisions for how fees are dealt with when the works do not proceed. However, unless surveyors are expected to work without charge (and I’m glad to say, not many people hold that view), they should reasonably expect to be paid having proceeded in good faith following the service of a notice and as that notice related to works benefitting the building owner, it is they that should incur the cost. However, this appears to come as a surprise to some building owners.
What generally happens in this scenario is that the building owner or their surveyor (if one have been appointed) informs the adjoining owner’s surveyor that the works will not now be going ahead and asks for a summary of time incurred. If this happens relatively early in the process, I would expect the time incurred to be somewhere between 1 and 2 hours (to cover reviewing the notice/drawings, initial advice to the adjoining owner, confirming their appointment and contacting the building owner or their surveyor). If I were the building owner’s surveyor, I would recommend to the building owner that they pay those fees so that the adjoining owners’ surveyor can close their file. Should they refuse the matter of fees must be dealt with formally by the two surveyors and their decision confirmed in a party wall award (the time spent agreeing and serving that award will cause those fees to increase). Some would argue that a ‘dispute’ between the owners has not arisen is this scenario but if each believe the other should pay the adjoining owner’s surveyor’s fees then I believe it has.
Where a building owner serves their own notice, decides not to proceed before appointing a surveyor and then refuses to cover their neighbour’s surveyor’s fees to date the situation is more complicated as both owners have to have appointed a surveyor before an award can be served. In that scenario the adjoining owner would have to use the provisions of section 10(4) of the Act to appoint a surveyor on behalf of the building owner so that an award can be agreed and served to resolve the dispute relating to fees. It is at this point that the situation gets slightly ridiculous as the building owner could end up paying the fees of 2 surveyors despite abandoning their proposals but the only other option is for the adjoining owner’s surveyor to write off their fee and I can understand them not wanting to do so.