September 2009 for Party Wall works our neighbour/Building Owner wishes to carry out. The Award states that upon signing of the Award the Building Owner shall pay the Adjoining Owners’ Surveyor’s fee, however to date this has not been paid. Last week, on 8th July 2010, the Building Owner commenced digging the foundations for multiple extensions. According to the Award, ‘The Building Owner shall effect… to maintain adequate insurance… and shall provide evidence of such insurance to the Adjoining Owners’ Surveyor.’
Due to previous unauthorised Party Wall work the Building Owner has carried out (not covered in the Award), which has caused damage to our property and which the Building Owner refuses to acknowledge or address, we are keen to know if the Building Owner has insurance in place in starting work.
We have contacted our appointed Party Wall Surveyor in order to find out whether he has evidence of the insurance, but our Surveyor has replied to say that he is unable to assist us due to the fact that his fees have not been paid by the Building Owner.
Would you be able to tell me whether we are in a position to do anything and whether our appointed Surveyor can refuse to assist us?
Your appointed surveyor should assist you whether his fees have been paid or not. Assuming that the award was not appealed his fee is payable as a civil debt so he should have no problem in enforcing payment.
Having said that the Building Owner is responsible for any damaged caused by their works whether they are insured or not. In reality any insurance that they have is unlikely to cover damage to your property caused by their works. If damage occurs the appointed surveyors should either arrange for the contactor to make good or agree a payment in lieu. Should your surveyor refuse to act in that scenario it would be up to the Building owner’s surveyor to proceed ‘ex-parte’ i.e. on his own. He would have an obligation to be impartial. If that situation does arise you may want to put a call in to the selected Third Surveyor who would hopefully talk some sense in to your surveyor.
Regarding the damage which occurred by the unauthorized works, you should have a strong case if you were to make a claim. This piece of relevant case law in enlightening on that point – http://www.malcolmhollis.co.uk/website/Attachments.nsf/LookupMultiAttachView/LDEV-6U2GGC/$File/Think%20again%20before%20ignoring%20party%20wall%20legislation.pdf?Openelement
And just to update you, I did contact my surveyor regarding his continued assistance despite the non-payment of fees and he replied today to say that recent case law means he is only able to recover the fees in our name, and until we give permission to do so he will not assist us further.
I think the case law that your surveyor is referring to is Van Maanen V. West Greenwich Developments LLP. This was only a County Court decision so does not set a precedent – my understanding is that surveyors fees are payable as a civil debt and that debt can be enforced in the Magistrates Court. I have personally taken a Building Owner to court to claim my fee in relation to acting for the Adjoining Owner and been successful.
This doesn’t change the fact that you appointed surveyor has a statutory duty to continue to act for you.
To let you know it was indeed Van Maanen v. West Greenwich Developments to which my surveyor referred. He informed us that after this case they now word their Awards to place responsibility on the Building Owner to pay. However, he wants to sue the Building Owner in our name nonetheless, and has told us to either sign the court papers he has prepared in our names or he will take action against us. And he has said he is not willing to assist us further until he has been paid, despite us pointing out his statutory obligation.
Whilst I can see his perspective for pursuing the Building Owner in our names, we are also aware that our surveyor could also pursue this himself successfully, without putting us in an uncomfortable and openly liable position. It seems more and more to me that the whole process puts Adjoining Owners in a lose/lose situation if they are dealing with unscrupulous people. In our case, I think we are unfortunate and might have to consider lodging a complaint of some kind and/or contacting the third surveyor for assistance.