There are many reasons why neighbours do not respond to party wall notices – they may have moved out of the property and not updated the Title Register, they may be on a long holiday or they may just be the type of person that doesn’t do paperwork (more than you might think). Whatever the reason, I would estimate that between 10 and 20% of party wall notices to not receive a response.
It would be unfair if the works had to be delayed in such a scenario so section 10(4) of the Party Wall Act allows the building owner (the party intending to undertake the works) to choose a surveyor on behalf of the non-responsive adjoining owner. This cannot be the surveyor that they have appointed (you can only have an Agreed Surveyor if both owners agree to it) but it can be anyone else bar themselves.
Specialist party wall surveyors anticipate this situation and include authority to make such appointments within their letter of appointment. The building owner can of course make the appointment themselves but there are benefits in drawing upon the expertise of their appointed surveyor to ensure a sensible surveyor who will charge a reasonable fee is appointed.
Although appointing a surveyor on behalf of the adjoining owner allows matters to progress, it does not help with gaining access to their property to record a schedule of condition. The surveyor that’s been appointed on their behalf will request access but it’s rare that they receive a response. In such cases the two surveyors will proceed having taken as thorough a record of the condition of the adjoining owner’s property as they can get. This will typically be the exterior as seen from the building owners’ garden (incidentally, in these circumstances, the award should not allow for a further inspection at the end of the works but rather include an hourly rate for the adjoining owner’s surveyor should one be possible).
Having recorded the schedule, the two surveyors agree the award in exactly the same way – if anything, they will go out of their way to demonstrate their impartiality to the owner who did not get to appoint their own surveyor.
A surveyor appointed under section 10(4) of the Act cannot waive the statutory notice period on behalf of the adjoining owner so there may have to be a delay with the works commencing even after the award has been served for this to run.
Finally, on a similar note, a surveyor appointed under section 10(4) will not be authorised to receive further notices on behalf of the adjoining owner (as they would be with a direct appointment) so if part of the works were accidently left off the original notice a further notice will need to be served and the procedures followed from scratch including appointing the adjoining owner’s surveyor in relation to the further notice before an award can be served.
If you find yourself in this situation and require advice on party wall matters you are welcome to call us on 020 8546 7211 or contact us via email.