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 
surveyors" ).  
 
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. 
When is party fence not covered by the Party Wall etc. Act 1996? 
When choosing an agreed surveyor can be detrimental to your health. 
Graham Earlem (Eilam) Steele was made bankrupt on 27th June 2016. According to the trustees report from Grant Thornton, Steele owed in excess of £300,000. Whilst now out of bankruptcy (it generally ends after 1 year) the trustees are still pursuing different avenues to recover any assets he has. 
 
Steele has once again formed more limited companies, one being SSES (London) Ltd (company no. 10913091). Invoices have the VAT number 182 1069 22 which is registered to Graham Steele at 27 Kestrel Road, Waltham Abbey, Essex, EN9 3NB. This information is publicly available on this website. 
 
Due to ongoing legal reasons which may well have serious implications, we can say no more but a full version can be found on www.partywallactsurveyor.com. 
 
It should be noted that despite many complaints to Google including many lies to try and remove content about himself from showing up in Google search results, Steele or his associates have yet to engage a solicitor and contact me over the claim of defamation. The obvious reason is that Steele knows I have the evidence to back up the claims. 
 
A full update will appear in due course. 
 
Does this practice a project a professional image for party wall surveyors? 
 
 
A business colleague forwarded an email he had received just before Christmas from a firm of 'Consulting Engineers, Quantity Surveyors and Party Wall Surveyors'. The email stated that they were running a 'winter promotion' and offering a referral payment for all introductions made before the end of February 2018. The email continued 'quite simply, if you recommend us to your clients, and we are appointed before March next year, we will make a payment of £150 per appointment by way of a thank you'. 
 
Nothing too wrong with that I thought? One way or another, you market and advertise your business and pay the costs of doing so. When I read the email again, this referral fee was not for the Consulting Engineering or Quantity Surveying services but only the Party Wall Services. So now there is a problem! 
 
Why is it that you only receive a referral fee for the Party Wall services?  
 
A client is a client, so why don't they say, 'thank you' to the tune of £150 for any referral? My guess is this. In a competitive market you have to be keen on your prices and London is no exception. Paying £150.00 for every referral is a lot more than a small surveying business would want to pay or in fact could sustain for more than a few months, unless the directors were prepared to dig deep into their own pockets, especially with a newly formed company. It is much like the 'Hoover free flights promotion', a disastrous marketing promotion that began in 1992 where the British division of The Hoover Company promised free airline tickets to customers who purchased more than £100 worth of its products. Hoover had not anticipated that many customers who bought the qualifying products were not really interested in the actual appliances, but simply wanted the tickets offered in the promotion.  
 
Initially the offer was for two round-trip tickets to Europe, but the destinations were later expanded to include the USA. At this point the consumer response increased enormously, as the normal price of these flights was several times more than the £100 purchase required to get free tickets. Overwhelmed by the demand both for tickets and products and by the cost of the flights, Hoover could not honour its promises. A court case ensued and the disaster which cost the company almost £50 million later sold the British division of Hoover to Italian manufacturer Candy. 
 
There are two owners when you are dealing with disputes under the Party Wall Act. The building owner usually picks up the bill for both his own surveyor and that of the adjoining owner. Surveyors taking appointments for building owners will more often than not, provide a fixed fee to the building owner, because as I said, it is a competitive market. Sometimes, the building owner will be happy (or maybe they don't know better?) to not have a fixed fee and proceed on an hourly rate. The adjoining owner's surveyor will invariably charge by the hour and then tot up his hours at the end and present his bill. It is no surprise that an adjoining owner's surveyor quite often charges more than the building owner's surveyor, even though the latter has drawn up all the paperwork and spent far more time, just for the former to check. How easy it is to present a time sheet after the fact, when generally most of the timesheets don't log each individual email, phone call or item of work but instead bundle items together.  
Does the owner have a right to know that the surveyor has paid a referral fee, similar to Financial Advisors, for example? 
 
When party wall surveyors are charging anywhere between £150-350.00 per hour and there is no effective way of checking every minute of a surveyor's time-sheet, it can be a lucrative profession. Challenging the amount of fees can be an expensive procedure with no certainty of 'winning', so unless the charges are ridiculously high, most of the time fees are agreed. That is just the way it works. 
 
Now, the fees for engineering and quantity surveying are probably not so easy to come by when in all probability you have to provide keen figures to start with. I cannot see many companies picking up work by telling a client who is enquiring about costs for a quantity surveying project " thank you for your enquiry.........we charge £200 per hour and we will tell you at the end how many hours we have done and what you owe us". 
 
I am just being cynical? 
 
Back to my original question; why is it just cash back for a party wall appointment? 
 
 
 
 
 
 
This is actually a Facebook post that I ran, but it is absolutely true. These are the rates of party wall surveyors you can expect to pay whether they be in Cheshire or in London. The higher rates are generally in London where you would expect, as we all know the capital is far more expensive to live than most places in the UK. 
 
The most experienced and recognised surveyors in London charge the upper end and I have no problem with this as they will, due to their experience, generally take less time to complete matters. I would say that the majority of the surveyors I deal with in London charge between £120-200/hour.  
 
There are unfortunately a few surveyors who have a top end hourly rate and who are obstructive, condescending and generally unpleasant to deal with. What's more, they are generally known throughout most the industry for their behaviour. It seems they go out of their way to make the whole process longer than necessary, argue ridiculous points and concern themselves with non-statutory matters under the Act. Sometimes, it appears that this is borne out of their yearning to be a lawyer rather than a surveyor and they confuse the two significantly different jobs. 
 
The best way to deal with this I find, is to quickly refer matters to the third surveyor. Whilst this incurs additional costs for one party or both parties, it is the quickest and most cost effective way when dealing with a surveyor who is happy to run up his/her fees whilst refusing to progress matters as they should.  
 
Where possible, it is always safer to try and obtain a fixed cost for the work if you are a building owner. Sometimes this is not possible if the work is less than straightforward. The adjoining owner's surveyor will in most cases work on an hourly rate which the building owner is generally responsible for at the end, so unfortunately, when you come across a surveyor who is obstructive, you know from the start that his costs will almost certainly be higher than they should be and the surveyors will either then have to agree some middle ground or refer the matter to the third surveyor.  
 

How the Party Wall Act works in practise. 

I receive calls from building owners who before they have served notice, have been approached by the adjoining owner to inform them they have obligation under the Party Wall etc. Act 1996. Quite often this is due to party wall surveyors writing unsolicited letters to the adjoining owners to let them know their neighbours are planning work and they should appoint a surveyor to act for them.  
 
The source of this information is the local authority planning lists which they scour or subscribe to, in order to mass mailshot anyone who is living next door to where planning permission has been given. 
 
Unlike the majority of party wall surveyors who use marketing techniques that invite the owners to contact them, these firms rely on signing up as many adjoining owners as possible rather than acting for building owners where the costs are in most cases, fixed at the onset.  
 
In panic and ignorance sometimes, some owners sign the surveyors letter of appointment and are then stuck with a surveyor who then starts writing to the building owner asking them to serve notice and supply drawings. Remember you cannot not rescind the appointment of a surveyor easily under the Act. The industry has given these surveyors the name 'ambulance chasers' from the term used for lawyers who persuade clients to bring an action against the person responsible. 
 
I have seen some of these letters that introduce the surveyor and I have to say the content is worrying. I too would be confused if I was unaware of the Act and received one of these letters. They are written in terms which can only have one intention; to frighten the adjoining owner into signing the surveyor up as quickly as possible. 
 
What is paradoxical is the fact that these surveyors are causing a dispute that may never have happened had it not been for their scaremongering. And lets not forget, getting appointed as adjoining owners surveyor can be far more lucrative than acting for the building owner.  
 
There are probably 4/5 firms that are well known for this tactic of scaremongering and they no doubt make a good living out doing it. Problem is their reputation precedes them and you find out after it is all too late. 
 
My advice is to file all unsolicited party wall letters in the bin along with the double glazing and window blind flyers.  
 
UPDATE: The Party Wall etc. Act 1996 does not allow you to rescind a surveyor's appointment once made. In other words you are stuck with the surveyor you appoint unless the surveyor himself/herself rescinds their own appointment. In other words, be very careful before you sign up with one of these companies as there is no going back. 
 
 
 
 
Can a building owner save money by serving their own notices? 
The simple answer is yes. However, approximately 80% of the notices that I see that have been served by the building owner, are invalid in different ways. 
 
Sometimes it is the basics, such as the incorrect names and addresses, no doubt due to bypassing a Land Registry search to find out who legally owns the property and their correct details and then failing to continue the search past the freeholders and searching for the details of the leaseholders too. 
 
Quite often a building owner will scour on-line and find a Party Structure Notice (section 3) and use that because they want to build on the line of junction or something similarly unrelated.  
 
I see section 6 notices having been served with no section through the foundation and just some general planning drawings. Such drawings must be provided with a section 6 excavation notice. 
 
Sometimes, notice has been served incorrectly on owners who are not adjoining owners under the Act. They may have incurred costs at this point by appointing a surveyor. 
 
The first job of any party wall surveyor appointed under the Act is to check the notices. If these are invalid for any reason, the surveyor will probably end up drafting and serving correct notices. 
 
So yes, you can serve your own notices but have in mind that far from saving money it might end up costing you more if these are not done correctly.  
 
 
 
 
 
 
 
 

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