Role of the Third Surveyor in Party Wall Matters

What happens when the owners in a party wall dispute appoint separate surveyors, but those surveyors fail to resolve the dispute? The answer is that they make a referral to the third surveyor. The role of the third surveyor is defined in section 10 of the Act so let’s look at the key points:

10(1)(b) confirms that “the two surveyors so appointed shall forthwith select a third surveyor”.

Note the use of “forthwith” – it should be the first thing that the two surveyors do once their own appointments have been confirmed (and before they fall out!). Obviously, if the owners have agreed to use a single surveyor there will be no reason to select a third surveyor.

The standard procedure is that the surveyor appointed by the building owner suggests 3 potential third surveyors to their counterpart. There are forms in circulation for this purpose but a list within an email will suffice. The surveyor appointed by the adjoining owner either selects one, requests further names or makes their own suggestion(s). This process continues until agreement is reached. In 99% of cases, this process is successful, but if not …

10(8) sets out the process that must be followed if the two surveyors fail to select a third. In short, the task passes to “the appointing officer”.

The appointing officer will typically be the head of Building Control at the relevant local authority. If the local authority is one of the parties to the dispute the third surveyor is selected by the “Secretary of State (I don’t know which one as I’ve never heard of this being done)”.

The number of party wall surveyors that take on third surveyor appointments is small, I can think of 2 in Cambridge and perhaps 5 in the wider East Anglia area, so the names being suggested will generally be familiar.

10(9) confirms what happens if the third surveyor who has been selected refuses or neglects to act.

Basically, the process of selecting a third surveyor starts over. This does happen occasionally as third surveyors tend to be of the senior variety and are not great at letting it be known when they retire. I still get surveyors suggested to me that I know retired several years ago.

10(11) explains what a third surveyor does – “determine the disputed matters” referred to them by either the owners of their appointed surveyors and confirm that decision in an award.

Following the referral, each of the appointed surveyors will make a submission to the third surveyor. The third surveyor will typically allow each surveyor one opportunity to comment on the other’s submission. By far the largest proportion of third surveyor referrals relate to either the fee proposed by the surveyor acting for the adjoining owner or damage caused by the works.

Although the Act allows owners to refer matters to the third surveyor that would only happen in practice where an owner disagreed with their own surveyor over a matter that had not yet been confirmed in an award (if it was confirmed in an award, there will be a right of appeal).

Finally, 10(15) confirms that where an award is made it must be served on the owners.

The Act allows this to be done via the appointed surveyor and that’s what generally happens. The award will also determine who pays the third surveyor’s fees and any fees incurred by the appointed surveyors in relation to their submissions.

Unlike the two appointed surveyors, third surveyors can, and do, insist on payment before serving their award and that’s a clever bit of drafting as an owner who has lost the argument will be reluctant to pay for the pleasure once they become aware of the decision. The third surveyor will generally ask both owners to pay half and then leave it to the owners to sort out after the award has been served. If the third surveyor does not agree entirely with one of the parties or their surveyors, their fee can be apportioned.

The system works very well in practice – owners get a relatively quick decision and, if the third surveyor agrees with them, incur no additional costs. The same can’t be said of the court system. In my experience, third surveyors are very helpful sorts so it’s possible for the 2 appointed surveyors to approach them informally on a point of principle and get a quick, albeit non-binding, response without wasting time or incurring any expense.

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.