Party wall disputes: the third surveyor
The third way
19 May 2017
Alex Frame stresses the important role of the often overlooked third surveyor in party walls disputes
The Party Wall etc. Act 1996 (the act) mentions three types of party wall surveyor. First is the "agreed surveyor", who as their title suggests has been appointed as the single surveyor to resolve a dispute between the 2 parties.
Next are the surveyors who are appointed individually by each of the parties to resolve a dispute. Finally, there is the "third surveyor", who, in a case where there are already two appointed surveyors, is selected by them as a quasi- arbitrator, and they together form a tribunal.
When an agreed surveyor is appointed then there is of course no third, and as such the parties can be disadvantaged in the event of a disagreement with that surveyor because they have nowhere to take their complaint. The only advantage of appointing an agreed surveyor is one of costs as clearly only 1 fee is payable, usually by the building owner, rather than 2.
Notice that I have said the third surveyor is selected instead of appointed, and this is as directed by the act. In fact, the nuanced term "select" is mentioned 10 times in the act when referring to third surveyors, who are never referred to as being "appointed".
When an agreed surveyor is appointed then there is of course no third, and as such the parties can be disadvantaged in the event of a disagreement with that surveyor because they have nowhere to take their complaint
Once the two surveyors have been appointed by the respective building owners, their first duty is to select a third surveyor, as under section 10(1)(b) of the act. The legislation goes on to state: "All appointments and selections made under this section shall be in writing and shall not be rescinded by either party". In other words, surveyors cannot then be sacked.
Having made the selection of the third surveyor, the first two tend to leave the matter there – and thereby actually fail in their statutory duty, because section 10(11) of the act says:
"Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and [they] shall make the necessary award".
We therefore find that, although the parties, or owners, have a right to call on the third surveyor to determine any matter as well as calling on the two appointed surveyors, they will not know they can do so or how to go about it unless their surveyors tell them who has been selected.
The Faculty of Party Wall Surveyors (FPWS) runs an advice line for both the general public and surveyors, and having fielded many calls myself I am astonished at the problems that can arise.
It is very common to have someone on the telephone weeping as they inform me that, although a notice was served in January and surveyors duly appointed, it is now October and the two surveyors are still arguing, so no award has been made. This means that work has been unable to start, which clearly causes great consternation.
My answer has very often been: "You can of course call on the third surveyor to sort the matter out for you." However, the reply to this tends to be: "Who is that?" I then explain the procedure to the weeping caller, who – surprised – returns to the appointed surveyor, only to receive one of the following answers.
- "Only the first two surveyors can call on the third."
- "You don't need to bother with the third surveyor as we're dealing with it."
- "We haven't got one yet."
These and other answers fill me with horror, and simply tell me that there are a lot of party wall surveyors who clearly understand neither the act nor the reason for their own appointment.
It is very common to have someone inform me that, although a notice was served in January and surveyors duly appointed, it is now October and the two surveyors are still arguing, so no award has been made
Then of course there is the situation whereby the two surveyors cannot even agree on the selection of a third. The act does not prescribe how this should be done, but it is customary for 3 names to be offered by the building owner's surveyor, and if the other surveyor does not choose to select from this list then they usually offer a list of 3 of their own. This procedure may go backwards and forwards as the lists get ever longer, but usually after 12 names are offered, both appointed surveyors give up and move on to the next stage, which is covered by section 10 8) of the act.
"If either surveyor appointed under subsection (1)(b) by a party to the dispute refuses to select a third surveyor under subsection (1) or (9), or neglects to do so for a period of ten days beginning with the day on which the other surveyor serves a request on [them]—
"(a) the appointing officer; or
"(b) in cases where the relevant appointing officer or [their] employer is a party to the dispute, the Secretary of State,
"may on the application of either surveyor select a third surveyor who shall have the same power and authority as if [they] had been selected under subsection (1) or subsection (9)."
The appointing officer
Unfortunately this very often causes more confusion, because it prompts the question: "Who is the appointing officer?"
Some local authorities do understand the role, though, and if they have one in place it will be someone from the legal department or, more often than not, from building control.
Most such authorities are the inner London boroughs, which have been dealing with party wall matters under part VI of the London Building Acts (Amendment) Act 1939.
However, this leaves many other local authorities throughout England and Wales in the dark, and they know very little of what to do when approached by party wall surveyors to select a third. I have received many calls from local authorities asking me to advise them; it is not their fault that they lack this knowledge, but a reflection on central government for not advising them of such a duty.
In order to help, the FPWS lists on its website competent third surveyors who have received training in how to act as such. The Department for Communities and Local Government holds the same list, in the event that a local authority is unable to help and these surveyors need to be approached.
The local authority appointing officer – and it is our recommendation that this be the chief building control officer – may select from this list, and of course they do not have to dismiss any of the surveyors previously discounted by the first two, should one of these be considered suitable.
Alex Frame is President of the Faculty of Party Wall Surveyors
Alex Frame’s The Third Surveyor: A Guide is published by FPWS.
Related competencies include:
This feature was taken from the RICS Building Control Journal (April/May 2017)