Jurisdiction of Appointed Party Wall Surveyors

Until 2008 it was widely accepted that when a party wall notice was consented to it brought procedures to an end and if a subsequent dispute arose it would have to be dealt with at common law rather than by appointed surveyors. I know the date because it was when the judgment in Onigbanjo V Pearson was handed down. The Party Wall etc. Act 1996 is quite brief, just 18 pages long, but like all legislation it has been shaped by such case law.

Another significant judgement, Evans v Paterson, was handed down last year. It confirmed a principle that I had always held to be correct, but that was ignored by many surveyors, and raised a new issue which will be debated by surveyors until it is dealt with definitely in a future case.

First the clarification, Judge HHJ Backhouse confirmed that a dispute was a prerequisite to an award for compensation under section 7(2) of the Act. Awards under section 7(2) are made after the works authorised in the principal award have commenced and deal with loss or damage suffered by an adjoining owner.

In Evans v Paterson, the two surveyors that were originally appointed, and who had served the award authorising the works, served a further award confirming that the building owner must pay the adjoining owner the sum of £8,130 in compensation for some cracking to the party wall. The surveyors also awarded themselves £3,795 in additional fees. The problem was that the building owner, Ms Evans, was not aware of any of this until she received the further award.

If the building owner had been made aware of the crack, she may well have accepted responsibility, agreed to compensate the adjoining owner and avoided having to pay surveyors’ fees.

I have always insisted that one or other of the owners confirm that a dispute has arisen before becoming formally involved in determining compensation for loss or damage. Insisting upon that confirmation also provides an opportunity to put both owners on notice of further fees (which in itself, may focus minds).

For a dispute to arise, there must have been an offer and a rejection. In this case an offer of compensation. If the offer is not responded to, it should be followed by a reasonable deadline for a response which, if not met, can be considered a rejection.

The new issue raised in Evans v Paterson was whether appointed surveyors enjoy an ongoing jurisdiction to make awards subsequent to the award authorising the works. This has always been taken to the case but the judgement in Evans v Paterson suggests that each subsequent dispute should be considered a separate matter with appointments either confirmed or updated. I’ll consider the implications of that part of the judgment in my next post.

If you live in the Cambridgeshire of north Essex area and require advice on a party wall matter, you are welcome to contact the author of this post on 01799 543532 or via email.