Until recently it was a general rule of thumb that the owner benefiting from the works that are the subject of party wall procedures paid the surveyors’ fees but a case from 2018 has highlighted a potential exception to that rule.
To understand the exception it is first necessary to briefly recap the process by which surveyors are appointed. The building owner, or a surveyor on their behalf, formally informs any affected adjoining owners of the proposed work by serving notice. That notice will offer the adjoining owner three options; to consent, to concur with the building owner in the appointment of an Agreed Surveyor or to appoint a separate survey of their choice. If the adjoining owner select option 2 there is no question that the building owner will be responsible for the Agreed Surveyor’s fee but if they select option 3 the situation has become more complicated.
If the building owner notes the decision and appoints their own surveyor (which would normally be the surveyor that served the notice on their behalf) they will remain responsible for both surveyors’ fees but if the building owner approaches the adjoining owner with a view to appointing their chosen surveyor as the Agreed Surveyor they may not. That was the scenario in the case of Amir-Siddique v Kowaliw .
There are a couple of details in the Amir-Siddique v Kowaliw case which may be relevant to responsibility for fees. The works were minor, a standard loft conversion, so the judge may have concluded that and Agreed Surveyor was unlikely to miss any of the relevant factors – the situation may be different if the proposed works were more risky such as underpinning or a basement extension. In addition, the adjoining owner had undertaken their own similar works several years earlier and matters were agreed without input from any surveyors – I always think it must be quite galling for an owner who has consented to their neighbour’s work not to have that response reciprocated and the judge may have felt the same way.
The judge decided that in the circumstances it was unreasonable for the building owner to pay two surveyors’ fees and on the basis that the building owner would have been responsible for the adjoining owner’s surveyor’s fee in any respect he made the adjoining owner responsible for the building owner’s surveyor’s fee.
The case was heard in the County Court so it’s not binding but if an award were appealed on the same principle in future it would certainly be persuasive. The caveats set out above should be considered but at the very least, an adjoining owner refusing to allow a surveyor of their choice to act as the Agreed Surveyor should be made aware that such a decision may end up costing them.
If you’re planning works covered by the Act and need to serve notice please do not hesitate to call us for some free advice on 020 8546 7211 or send us an email.