If a notice has been served but before the building party has appointed a surveyor, it is withdrawn by the building party, who is liable for the costs of the surveyor appointed by the adjoining owner?
It makes a pleasant change to get a nice to get a short question! Unfortunately the answer is not quite so short.
If the Building Owner had not appointed a surveyor then the time expended by the Adjoining Owner’s Surveyor should be fairly minimal – the time taken to scrutinise the notice and associated drawings and to return the acknowledgement.
Once the notice has been withdrawn the mechanism within the Act cannot be used to agree fees as would normally happen. If the adjoining owner’s surveyor acted on the notice in good faith then his fee should be paid by the Building Owner.
It may be that the Adjoining Owner has to pay their surveyor’s fees initially (that would depend on the wording of any contract between them) but the Adjoining Owner should then claim the money back from the Building Owner. I would hope that most surveyors acting for Adjoining Owners would assist their appointing owners with this or at least hold their fee account until it is resolved.
I am the building party in this matter. Before I served the party wall notice my neighbour consulted a solicitor and after months of negotiations (despite me having the appropriate planning permission) we had a round table discussion with our respective solicitors present. My neighbour agreed at this meeting that subject to me serving the relevant party wall notice, then she would not object to my building works. When I served the notice on the last day I received correspondence from a surveyor appointed by her saying we were in dispute. I wrote to him outlining what had gone before and asking what the nature of the dispute was, but he would not tell me and said if I did not instruct my own surveyor he would do it for me.
My neighbour has caused me so many difficulties over this that I do not want to continue at this time. In addition to that because of the delay my builder is no longer able to complete the work at the moment and I have 2 small children and do not want to do it in the middle of winter.
I wrote to her surveyor saying that I now withdraw my notice and have received his bill, which is nearly £350.00 for 3 and a half hours work. The development I had planned was a single storey 3 metre extension to my kitchen.
I appreciate your comments but on reading the act I was wondering how something which has only benefited my neighbour should be paid for by me. I do not know what advice has been given and I have not benefited from it and so why should I pay for it!!! I was wondering if you have any authorities on this issue.
The term ‘in dispute’ are the words used in the Act when an adjoining owner dissents to a notice; as they are entitled to do. Your neighbour’s dissent cannot stop your work but gives her the right to appoint a surveyor to act on her behalf.
I’m not sure what the round table discussions with solicitors were about; presumably planning matters as there is no place for solicitors in agreeing party wall matters. You should have started the process by serving the notice and let the surveyors settle any ‘dispute’ that arose.
Your neighbour’s surveyor is entitled to charge for his time as he acted on your notice in good faith. I have first hand experience of this issue recently took a building owner to court on exaclty this point and was sucessful. If you do not think that he expended all of the 3.5 hours that he has billed you for then you should ask him to provide a copy of his time sheet.