A recent case study shows us how easily the Act is often misused or misinterpreted and that even referrals to the 3rd surveyor do not guarantee that any such misinterpretations are effectively resolved. The Faculty of Party Wall Surveyors keeps its members up to date with case law and its effects on the day-to-day matters that arise.
There are many clauses within the Act that may appear from the outset to be contradictory or deliberately misleading. It is thought that this is due to the extent at which the Act has been re-written and that in each edition the wording of the prior edition has been maintained rather than updated to coincide with the wording of the new clauses. The case study of Kaye V Lawrence 2010 looks at the specific relevance of the difference between ‘rights conferred by this Act’ against ‘in pursuance of this Act’ or indeed the lack of difference in practicality.
It is generally accepted by the courts that surveyors should take a practical view of the Act and its intensions when determining an award rather than to crate anomalies in the wording to benefit either party. In this particular case it was an issue over security that had arisen when the Adjoining Owner was served with a notice under Section 6 (Adjacent Excavation). It was awarded that Section 12(1) was irrelevant, as the works did not affect a party wall, however the judge determined that it was just as likely that excavation works would cause damage and as such Section 12(1) could and should have applied.
This recent case makes it even more evident that despite the day-to-day battles surveyors have regarding the specific wording of the Act they should always review each case in its own merits and ensure that the appropriate sections of the Act are applied. If is it considered likely that damage maybe caused and that the Adjoining Owner would be left in a considerably worse situation should damage be caused or if the works were left incomplete they should be entitled to protect their interest and reserve security for any such eventuality.
Our duty as Party Wall surveyors is to ensure that works can progress diligently but at minimal inconvenience to any affected owner. As such it is our duty to ensure that where sensible to apply additional security measure we do so. We are appointed to protect the properties affected by the works and whilst we must always ensure we do not overstep our authority we must also ensure that we fully consider the application of the Act as a whole.
Sense and sensibility, buckle and braces. Party wall matters are rarely as simplistic as they first appear but if we act in a manner that will inevitably be considered to be impartial and to the benefit of the parties involved it is less likely that we will incur unnecessary costs to our appointing owners and that our duties will be fulfilled.
At Party Wall Services we pride ourselves on always taking a pragmantic view and where anomalies arise agreeing the most sensible approach to resolution.