Section 10 of the Act deals precisely with dispute resolutions and explains the procedures in place following the service of a Party Wall Notice and subsequent Notice dissent, or Notice nonresponse.
Once a Party Wall Notice has been served by a building owner, the adjoining owner will have
3 response options available to them.
PARTY WALL NOTICE RESPONSES
1, Consenting to the works
2, Dissenting, with the Agreement of an Agreed Surveyor
3, Dissenting, with the appointment of their own Party Wall Surveyor
Options 2 and 3 will result in a ‘dispute’ as per the wording of the Act arising. It is then the role of the Party Wall Surveyor, or Surveyors to resolve that dispute.
AGREED SURVEYOR
This essentially means that one Surveyor acts impartially on behalf of both the building owner and the adjoining owner.
The Surveyor’s role will be to protect the interests of both owners impartially via the agreement of a Party Wall Award which is the final legally binding document, governing the construction work and adding damage protection above and beyond common law for both the building owner and the adjoining owner.
The building owner would be solely legally liable for both Party Wall Surveyors’ fees.
An adjoining owner can also choose to dissent and opt for the instruction of their own surveyor.
APPOINTMENT OF THEIR OWN PARTY WALL SURVEYOR
Dissenting and appointing their own Surveyor will mean that an adjoining owner chose to appoint an independent Party Wall Surveyor from the Building Owner.
At this stage, both Surveyors will undertake the same roles as response option 2, concluding their input via the agreement of a Party Wall Award. The building owner would be legally liable for both Party Wall Surveyors’ fees.
THE ACT’S WORDING ON THIS FOLLOWS;
10(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either (a) both owners shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or (b) each owner shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”).
Section 10 of the Act has a total of 17 sub-sections, we will briefly decipher all of those with the aim being to provide a good understanding of the section as a whole:
SECTION 10(2)
This section of the Act essentially confirms that once an appointment is confirmed in writing by the owners dissenting to the notice received, this cannot be revoked.
SECTION 10(3)
This confirms that proceedings to settle a dispute shall begin de novo (restart) in circumstances where an agreed surveyor; refuses to act or fails to act within 10 days of being served with a request from either owner; deems themselves incapable of acting or, dies before a dispute is settled.
SECTION 10(4)
Confirms that an adjoining owner who fails to conform with section 10(1) for a period of 10 days beginning with the day on which the other party serves a request to appoint a surveyor, the non-responsive owner can have a surveyor appointed on their behalf by the other owner.
SECTION 10(5)
Confirms that an owner who appointed a surveyor who is for the reasons stated in subsection (3) unable to act, may appoint another surveyor who will have the same power and authority.
SECTION 10(6)
Confirms that if a surveyor who was appointed under subsections (1), (4) or (5) refuses to act effectively, then the other owner’s surveyor may proceed to act on behalf of both owners as an agreed surveyor.
SECTION 10(7)
Confirms that if a surveyor appointed under subsections (1), (4) or (5) neglects to act effectively within 10 days of being served with a request by an owner, the other owners’ surveyor may proceed in respect of the subject matter requested to be dealt with as if they are an agreed surveyor.
SECTION 10(8)
Confirms that if a surveyor fails or neglects to agree to an appointment of a third surveyor within 10 days of the other party’s surveyor serving a request on them, the appointing officer or the Secretary of State may on the application of either surveyor select a third surveyor who shall have the same powers as if the appointment was under subsections (1) or (9).
SECTION 10(9)
Confirms remedies for the refusal, neglect, or death of a third surveyor to act in a dispute. In any of these circumstances, the owners’ surveyors may select another third surveyor to act.
SECTION 10(10)
Confirms that the acting surveyor(s) agreed or otherwise shall by way of making a party wall agreement concerning any dispute between a building owner and an adjoining owner that has arisen from any of the work being carried out under the provisions of the Act.
SECTION 10(11)
Confirms that either of the parties may call in a third surveyor who will resolve the dispute and make an agreement.
SECTION 10(12)
Confirms that an agreement can determine whether the owner(s) have the right to execute the proposed works, the time and manner in which it may be carried out and any other matter that is incidental to the dispute including the surveyor’s costs.
However, any durations specified for service of notices must have elapsed before any works can commence.
SECTION 10(13)
Confirms the reasonable costs that a surveyor can charge for their services. This subsection also confirms that the surveyor(s) have the authority to determine who is to settle such costs.
SECTION 10(14)
Confirms that the appointed surveyor(s) must serve any agreement made by each of the parties.
SECTION 10(15)
Confirms that where an agreement is made by a third surveyor, once the fee is settled the third surveyor shall serve the awards on the owners’ surveyors who in turn will serve the awards on the owners.
SECTION 10(16)
Confirms that the Party Wall Award is conclusive and may only be questioned per the provision set out in subsection (17).
SECTION 10(17)
Confirms that an agreement may only be appealed within a period of 14 days of receipt of service to a county court. The county court has the authority to rescind the agreement or amended the terms of the agreement.
The Act can be complex in its detail, while it’s straightforward for Surveyors, it can often unravel owners. Be sure that you fully understand the Party Wall procedures via your Party Wall Surveyor to avoid issues.