Inspections: party wall draft award templates
Words to the wise
30 January 2015
Using party wall draft award templates requires care, warns Nick Isaac
Surveyors appointed as party wall surveyors under the Party Wall etc. Act 1996 are required to make an award under the Act in order to resolve whatever actual or deemed party wall dispute may exist between building owner and adjoining owner.
Although there is no prescribed form for such an award, a number of templates have been produced, the most commonly used being that annexed to the 6th edition of the RICS guidance note Party wall legislation and procedure.
Such templates are designed to save appointed surveyors a great deal of time, firstly by including provisions that are applicable and relevant to most party wall awards and secondly by using wording that has been carefully formulated by experienced surveyors and lawyers and has the benefit of established use.
In effect, surveyors using a template can simply fill in the key sections individual to the dispute they are resolving, and a comprehensive and valid party wall award is the result. Or at least, that is the theory.
In practice, surveyors need to be more careful in their use of templates in the production of awards. This extends not only to ensuring that only those elements of an award that are both applicable to and necessary for the resolution of the dispute in question are included, but also to looking critically at the wording of the standard form templates themselves.
Check the clauses
The first thing to consider is to only include what is necessary. There is always a temptation when using a template to include all the comprehensive provisions listed. In fact, it is far more sensible to adopt an 'if in doubt, leave it out' approach. Only where you can see what purpose a clause serves, and why it needs to be included in the award in question should you leave it in.
Do not assume the template writers are correct. By its nature a template is generic, attempting to cover a wide range of possible scenarios
Do not assume the template writers are correct. By its nature a template is generic, attempting to cover a wide range of possible scenarios. Not only does this lead to a tendency to include provisions 'just in case', but it is easy to lose sight of the primary purpose of the award – the resolution of a specific dispute under section 10 of the Act. The RICS standard form template includes at least half a dozen provisions that are arguably wrong, unlawful or both. When using a template reassure yourself that everything included within it complies with the requirements of the Act.
If you do not understand the purpose of a provision, leave it out. For example, the RICS standard form template includes a recital dealing with whether the wall in question is a boundary wall, party wall, party structure or party fence wall. Why is it necessary to recite this or make a determination as to this point? It is rarely if ever necessary.
Make sure the words used do the job you want them to do. The RICS standard form award recites that attached drawings form part of the award. But this does not imbue those drawings with any function. If you want to attach drawings to the award because they provide a detailed description of the works and how they are to be carried out, say so in the award.
Rely on the Act rather than repeat it. Many templates have a tendency to more or less (but not entirely accurately) quote from the Act. It is almost universal, for example, for awards to recite that the building owner will compensate the owner for any loss or damage caused by the awarded works. If the Act provides for an obligation anyway, there is no need to repeat this in the award – if you feel the need to advise your appointing owner of this right/obligation, do so in a letter of advice. And if you absolutely must repeat a provision of the Act in an award, quote it accurately.
Do not stop using templates, but please do not do so unthinkingly.
Nick Isaac is a property litigator specialising in party walls at Tanfield Chambers
- Related competencies include Legal/regulatory compliance
- This feature is taken from the RICS Building surveying journal (December/January 2015)