Resolving Damage Disputes Under the Party Wall Act

I finished the penultimate post in this short series by explaining that, having assembled all the necessary supporting documentation, an adjoining owner should present the details of their damage claim to the building owner for consideration. I always recommend that the adjoining owner includes a date after which they will consider the claim to be in dispute. This is important as a building owner will sometimes take a very long time to consider a claim, or ignore it completely, and the matter can only pass to the appointed surveyor(s) to resolve if a dispute is confirmed.

Equally, appointed surveyors should resist becoming formally involved unless and until a dispute has been confirmed as they do not enjoy an unlimited ongoing jurisdiction to make further awards subsequent to the initial award. Many surveyors will use their experience and expertise to try and facilitate an agreement or at least some discussion between the owners, but this must be on an informal unpaid basis (unless a fee agreement outside of the Act has been entered in to).

Once a dispute is confirmed, either owner can refer the matter to the appointed surveyor(s). Section 10(10) of the Act states that:

The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—

(a) which is connected with any work to which this Act relates, and

(b) which is in dispute between the building owner and the adjoining owner.

This should be viewed as a requirement rather than an option. If either owner attempted to use the courts to resolve a dispute relating to works authorised in a party wall award they would (eventually) be told to use the provisions of the Act.

Disappointingly, despite their obligation to act impartially, it is relatively rare for two appointed surveyors to reach agreement on a referred dispute. Commercial interests, or simple cowardice, often get in the way and the matter ends up being referred to the Third Surveyor. In that scenario, each surveyor will be invited by the Third Surveyor to make a submission, with potentially one follow up set of comments, before he or she makes their determination. That determination is confirmed in an award which is served on the owners. There is a right of appeal for 14 days following service, but as appeals are heard in the County Court, they should only be lodged after careful consideration.

If an agreed surveyor has been appointed, there will not be a Third Surveyor, so they must either determine the matter that has been referred or deem themselves incapable of acting.

Which owner pays the costs of resolving the dispute, which will mainly consist of the surveyors’ fees, will form part of the determination. That will generally follow the main decision, but if the surveyor(s) do not determine the matter fully in favour of either owner the costs may be apportioned. Those costs can be substantial, particularly if the Third Surveyor is involved, which makes it unfeasible to refer disputes relating to relatively small sums of money. Surveyors should therefore make owners aware of their potential liability for costs as soon as possible as it may help to focus minds.

This is the final part of a short series of posts relating to claims under the Act.

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.