Cases - Loost v Kremer

Record details

Name
Loost v Kremer
Date
(1997)
Citation
(unreported, 12 May 1997)
Legislation
Keywords
Party walls - validity of surveyors appointment - third surveyor in awards - importance of the limited jurisdiction of surveyors under the Act
Summary

The defendant (the leasehold owner) wished to carry out works of extension to his property which would affect the party wall between his premises and the plaintiff's property. The defendant had served a party structure notice. The freehold owner had not joined in such a notice or served her own notice. She had, however, given her permission for the works to be carried out and allowed a variation to the lease to that effect. The plaintiff objected to a subsequent party structure award on the ground, amongst others, that the freehold owner had not served a notice and should have done, as she was a building owner. The judge decided that she was not a building owner as the person who was desirous of doing the works was the leasehold owner and therefore she, as freehold owner, did not need to serve a notice.

In addition, the judge considered whether the building owner's surveyor had been correctly appointed. The appointment letter said that in the event of a dispute the building owner 'would' appoint the surveyor to act. The party structure notice referred to the appointment of the building owner's surveyor in the same terms. It was argued that this was not a valid appointment. The judge decided that the appointment was a valid conditional appointment. The condition occurred once a dispute arose in relation to the notice. The judge went on to say that, in any event, various letters written by the adjoining owner acknowledging that the surveyor was the building owner's surveyor, would amount to a waiver or estoppel, and would prevent the plaintiff from arguing that the appointment was not valid. He said ‘It seems to me that... a third surveyor, does have jurisdiction to decide a matter, even if it is a matter of law, which is fundamental to the question of whether he makes an award or not’.

It was also argued that the building owner's surveyor could not properly act under the 1939 Act as he was acting on behalf of the company of which he was a director and he had a conflict of interest, being the building owner's architect for the works. The judge decided that a surveyor must be an individual not a company but that the building owner had, in fact, appointed his surveyor as an individual. The judge also decided that the fact that he was the architect for the works did not prevent him being the surveyor for the purposes of the Act, nor give him a conflict of interest.