Refusing to accept an agreed surveyor
Posted on 26th June 2018 at 14:01
Agreed Surveyor- refusal to accept an agreed surveyor may be judged unreasonable.
Once notice has been served and a dispute arises or is deemed to have arisen, section 10(1) of the Party Wall etc Act 1996 states
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom in this section referred to as the “three
Invariably the building owner proposing the work has already lined up a surveyor to act in the event of a dispute and that surveyor may well have served notice on the building owner’s behalf. If the adjoining owner is not going to consent to the notice, the next best option for the building owner is that the adjoining owner will accept the surveyor they have already chosen as the “agreed surveyor”.
Obviously, the main reasoning behind this is cost. If one surveyor can act, then it theoretically reduces the building owner’s party wall costs by 50%. But what if the adjoining owner refuses to agree to use an agreed surveyor?
Up until recently, surveyors would advise that the option to use an agreed surveyor or not was essentially down to the adjoining owner; the Act does not make it mandatory to use an agreed surveyor. Much to the despair of building owners, the cost of two surveyors can sometimes be more than the work they intend to carry out.
However, a recent appeal to a party wall award has cast some doubt on if it is reasonable for an adjoining owner to insist they use a separate surveyor.
In brief, the building owners wanted to construct a loft dormer extension to their property. The adjoining owners had done a similar loft extension about 10 years earlier and had drawn up an agreement with the now building owners, without the formalities of going through the procedures in the Party Wall Act. No surveyors were appointed, and the work went ahead.
When the roles were reversed, the now adjoining owner did not for one reason or another consent to the work. Not only did they not consent but they refused to agree to appoint the surveyor that the building owner put forward, to keep the costs down. They instead appointed their own surveyor at a rate of £210.00/hour plus VAT AND refused to allow him to become the agreed surveyor between the parties. Subsequently, a two-surveyor award was made which was later appealed by the building owner. The building owner was seeking the cost of both surveyors amongst others.
The court found that the behaviour of the adjoining owners was unreasonable in that they insisted on a “two surveyor route” rather than allow the surveyor they had initially appointed become the agreed surveyor, thereby incurring the building owner in additional costs.
The court went on to state that the building owner would have incurred the adjoining owners' surveyor's fees in any case had he been allowed to act as agreed surveyor, but found that the adjoining owners surveyors costs were a wholly unnecessary cost and ordered that they paid by the adjoining owner.
In conclusion, although it is a county court decision and not binding on any other court but perhaps only persuasive, adjoining owners must be aware that unreasonably refusing to agree to an “agreed surveyor” could result in the building owner’s surveyor’s costs being awarded against them.
At the very least, party wall surveyors in this situation should advise their appointing owners of this case if they are adamant on refusing to allow their own surveyor to become the agreed surveyor.