In All Normal Circumstances …
Sunday, 28th April 2019
Party Walls
It’s the phrase that party wall surveyors rely on to reassure adjoining owners that they will not incur costs as a result of their neighbours’ works i.e. “In all normal circumstances, the fees of all/any appointed surveyors will be paid by the building owner”. The inquisitive adjoining owner will ask for clarification of what ‘normal circumstances’ are and it’s a good question.
First a bit of background, section 10(13) of the act confirms that it is for the appointed surveyors to agree who pays their fees, so in theory there is nothing preventing them from agreeing that they should be split between the owners. However, it is a rule of thumb that the owner benefitting from the works pays the fees and I’ve never yet had another surveyor argue against this well established convention.
So why can’t we be more categorical with adjoining owners about who pays the fees? It because there are exceptions or what you might call ‘abnormal circumstances’.
We occasionally get calls from adjoining owners who have fallen out with their neighbours so badly that they want to appoint the most expensive surveyor they can find. Such tactics are reprehensible and although I could provide them with a shortlist we prefer to explain the flaw in their plan; section 10(13) of the Act confirms that fees must be ‘reasonable’. Reasonableness is tested by having the fees agreed by the two appointed surveyors or, should that not be possible, determined by the Third Surveyor.
A professional surveyor will accept the decision of the tribunal of surveyors and only look to recover their reasonable fees but some will attempt to make their appointing owner responsible for all fees in their terms and conditions; whether awarded or not. Ironically, adjoining owners are persuaded to agree to such an undertaking by the ‘in all normal circumstances’ line.
The principle that the owner benefitting from the works pays the surveyors’ fees does not apply to disputes that arise either during or following the works. Let’s look at a couple of examples …
It’s often observed by surveyors that owners never look at their property more closely then when there is building work going on next door and it is for this reason that they assume any cracks noted are related to those works. We’ll sometimes receive a call from an adjoining owner who has noticed a crack that they believe is new and would like us to come and inspect it. If we accept the invitation to inspect only to confirm that the crack pre-dates the works it would not be reasonable to charge the building owner for that visit. We can generally avoid this scenario from arising by checking the description of the crack against the schedule of condition prior to any visit.
Where a dispute is confirmed, typically relating to the cause or the cost of making good damage, it should be referred to the party wall surveyors to resolve. If the surveyors award in favour of the building owner they will likely also award that the adjoining owner should cover their further fees. The same principle would apply if the dispute were to be referred to the Third Surveyor.
In summary, if you want to avoid paying fees as an adjoining owner, choose your surveyor carefully, only agree to pay fees that have been awarded by the surveyors and act reasonably should any disputes arise after the works have commenced.
If you’d like to discuss this, or any other party wall related matter please do not hesitate to get in touch either by email or by calling us on 020 7183 2578.
