To appoint or not appoint…that is the question

To appoint or not appoint…that is the question

After receiving a Party Wall Notice, many adjoining owners contact Party Wall Services to ask for our advice on how to proceed. Often their main question is if they dissent to the said Notice should they appoint their own Party Wall surveyor or go with the building owner’s surveyor as an agreed surveyor. As always, there are positive and negative aspects when considering which option to choose.

If the adjoining owner has an amicable relationship with the building owner and does not want to do anything that might jeopardise that relationship, then choosing an agreed surveyor will definitely save the building owner some additional professional fees and possibly time in getting an award issued. However, the adjoining owner should also note that if they do choose an agreed surveyor and are unhappy with them then the Party Wall etc. Act 1996 does not make provision for complaint. The only recourse is if the adjoining owner has an issue with the award. Then the adjoining owner can take the award to the county court within 14 days of receiving it to contest it. This may seem to some a little too late.

On the other hand the adjoining owner is well within his rights to appoint their own surveyor, who works in conjunction with the building owner’s surveyor, to resolve the Party Wall dispute. The negative side is the additional surveyors fees that the building owner is responsible for under section 10(13) of the Act. But this option does give the adjoining owner another route to resolve any issue they might have with their surveyor. Under Section 10(1)(b) the two appointed surveyors have to select a third surveyor. Should you have any issues with your surveyors you may inform the third surveyor whose role it is to resolve the matter.

Which ever option you decide on, at Party Wall Services, we will be happy to offer friendly advice and can act as your agreed surveyor, building owner’s surveyor or adjoining owner’s surveyor.

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Down Under or Up Over?

I was reading an article recently on the job opportunities in Australia and never has the topic of relocation been a more appealing opportunity than now given the rather miserable summer we have been having. There are an abundance of jobs, particularly in the construction industry and the RICS is very respected and recognised over there, my only real issue is that there is no ‘Party Wall Legislation’ and I’ve kind of become accustomed to my role… which got me thinking…. Down Under, i.e. Basements, or Up Over, i.e Roof extensions…

Ok, so that was hardly the best way on introducing this blog, but it got your attention.. right?

We all know in recent years we have become less inclined to move and more inclined to improve our homes but if we are looking for additional living space, which way do we go? It has always been common to convert loft spaces into habitable rooms and is often one of the easiest to obtain planning for and cheapest to undertake, however now that many of us have converted our loft spaces, where do we go?

OK, so basements are not going to be as cheap or simple to procure but in many cases a basement is the real alternative to moving and more and more people are investing in extending downwards.

From a Party Wall prospective, this is great as it keeps us on our toes and up to speed with the latest pathologies and building techniques. I have recently run a seminar on Compensation issues surrounding Party Wall matters and raised the question over basement extensions during the seminar, as a result of which I will be arranging a Basements Vs Party Wall Seminar in October of this year which should prove to be a interesting and education debate. If you are interested in attending this seminar please contact me with your details and I will keep posted on details of the upcoming event. You may also like to follow us on Linked in.

One thing that has got me thinking is this, if a number of properties in a line of terraces have all created mansard roof extensions, at what point will the party walls be so overloaded that the next cannot undertake the same works without considering underpinning? And if underpinning is required, would it perhaps be more sensible for this owner to investigate the possibility of extending downwards instead?

In the future we may see a trend developing whereby one goes up and one goes down, and if this is possible or a real alternative, which property would sell best or be most appealing? Would the type of extension you have effect the value of your property or is space space when it comes to additional usable space?

It seems to me that there is a trend with Basements that is unlikely to shift and due to the extraordinary ways in which we can make an underground room a fantastic workable area, I’m intrigued to learn more, Perhaps a trip down under would help? If you like me, are fasinated in making the ordinary extraodrinary connect with me on Linked in and I will keep you posted on upcoming events.

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Starting a fresh in light of the Olympic Games

I had a recent call from a building owner who owns a property close to the new Olympic Games site who is looking to sell his property prior to the Olympics games and benefit from the increases in house prices in that area. His issue is that he is currently progressing through Party Wall negotiations and wanted to know where he stands if he sells the property.

Would any damages be his responsibility once he sold the property? If the Building Owner sells his property during the works can the Award be passed on to benefit the new owner?

At present there is no legal guidance on this matter. So any recommendations I gave him are from common sense in applying the Party Wall etc, Act 1996.

When applying the Act, it is very personal. An award does not bind land or sites, it binds owners and a firm is not appointed whereas a surveyor is. There is no mention in the Act for transferring the rights of a Building Owner to the new owner. Therefore if the Building owner sold his property during the course of works either before or after the Award was drawn up he would not be able to pass the benefit of an award to an incoming owner and the whole proceedings would have to start a fresh for the new owner.

However, if the works are complete, a Building Owner cannot be rid of the consequences of serving the original notice by disposing of the property. Any fees incurred or damage done will be his liability, although the new owner can if they so choose draw up an agreement and relieve the original building owner of his liabilities.

On the other hand, what if the Adjoining Owner decides to move half way through the proceedings? Should the Building owner have to start a fresh and serve notice on the new owners?

Considering the Act is an ‘enabling’ Act, to force the Building Owner to start afresh would not enable the works to continue but in fact delay them.

In the first instance, the new purchasing Adjoining Owner should be made aware of any party wall negotiations from the out set so no new notices would be required and the appointed Adjoining Owner surveyor can continue acting on behalf of the new owner. If an Award has been made then the new owner would be bound by that award. The property should be conveyed to the new owner with the full benefit and burden of the party wall proceedings.

So transferring the benefits and burdens is not possible for Building Owners but it is for Adjoining Owners.

 

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Don’t Get Done Get Dom!! BBC1 Today at 11am

 

One of our biggest challenges as Party Wall Surveyors is public awareness and understanding. We all strive to do our bit in making the Act something of a point of conversation and so when I was approached by the BBC to take part in a programme for consumer awareness I saw it as a chance to be doing my bit!!

It was somewhat a daunting experience and I really could not tell you very much about the process as I was a little shell shocked and star stricken (A number of celebs where walking around the studios during filming!) But I am hopeful I have done us surveyors’ justice and bought about a little more awareness so that the general public are a little more conscious of their rights and obligations…

Watch this space and any feedback on the show would be great…

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Party Walls – “ Plain Sailing…. (Stormy Waters!!)”

I have recently spend some time researching the advice that is available and easy to find on the internet with regards to Party Walls and how they affect both building and adjoining owners. To my surprise the information now available is in excess of my expectations and much of the information available is straight forward and helpful, however some of the advice I came across was quite simply, wrong.

As a Party Wall Surveyor myself, I knew what information was right and where the main misconceptions lie and so it was easy for me to sieve through the articles and guides, however as a lay man, having done the same exercise I would probably have a rather bad headache and feel all the more confused than when I started.

At Party Wall Services we strive to make the whole process as straightforward and cost effective as possible. It is true there are often complication or..hu? Shall I say challenging neighbour to contend with but all in all, provided all the parties involved correspond well with one another there is no reason why all matters cannot be resolved amicably under the act. This leads me to an article I read which detailed the specifics of a party wall issue that had arisen where appointments had been made by each affected party and all matters were handled efficiently and effectively under the Act. No much to write about you may think, but the case was made more complicated by the disgruntled neighbours, who had been promised the EARTH and where given none.

In this case the adjoining owners had received a letter from a firm when an application for planning had been approved. The surveyor had written to them and confirmed they could look into all Building Surveying issues and that they would be protected by the act from incurring any fees…. Sounding familiar?? Well, in this case the nameless firm/ surveyor were successful and where duly appointed following the Building owners service of notice.

The adjoining owners were concerned as the works including excavating within close vicinity of their property and also building close to the boundary line (note, closely and not on or astride) They were also concerned that due to the location and access issues with the site that they would be forced to give access and that this would lead to their garden becoming an extension to the site and their vegetable patch being destroyed along with creating a mud pool and reducing their ability to let their dog into the garden without escaping. Obviously all matters that the party wall surveyor felt he could resolve for them within the award.

Rightly so the notice served was a notice of adjacent excavation and an award was drawn up dealing with this element of works and satisfactorily included method statements, protection and insurances. However, the award made no reference to access or to the vegetable patch, or the ensuring that the garden remained dog safe to the astonishment of the adjoining owner how immediately complained to their appointed surveyor and were told that these matters fell outside of the party wall surveyors remit. This resulted in the adjoining owners refusing access until an official agreement was in place and caused the building owner several delays, not to mention additional expense.

The adjoining owners stated that they would have been happy to be neighbourly and to agree a sensible solution to their concerns but felt let down by their surveyor who, on several occasions in writing, had confirmed these matters would be specifically detailed and agreed within the award.

I found this an interesting article as it brought home the importance of not only acting within your remit as a party wall surveyor but also of ensuring that you communicate the limitations of your role. A failure to act accordingly or to mislead an appointing owner could lead to complicated issues and will certainly affect your status with the RICS if you have neglected to maintain professional and ethical standards. Whilst the RICS recognises that writing to individuals following planning application searches in itself is not a breach of their rules they have made the importance of ensuring information provided within any such correspondence is accurate and not misleading.

If you need advice about Party Walls or would like to discuss a current case please do not hesitate to contact us for guidance. We provide 1 hour free advice and are happy to review any documents you may have. Our aim is to increase awareness of the Act and to ensure that all matters are handled in accordance with its provisions.

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Do not hide in your basement from your Party Wall obligations

In a recent article in the RICS Modus Magazine, “Does it make sense to build below ground”, Roxane McMeeken weighed up the pros and cons of developing below ground. The main arguments included various hazards that have to be taken into consideration when building down. One particular point she made involved an old church at the end of the street with shallow foundations, stating that “your activity underground could shake it severely”. In fact any adjacent property could be adversely affected by a basement development. With this in mind if you are considering excavating for a basement conversion then you should consider the Party Wall etc. Act 1996.

If the adjoining owner’s property is within 3m of your development, then you will more than likely have to serve a Section 6 Notice on the adjoining owner as your excavations for the basement will probably go below their existing foundations. Additionally, if the design of the basement requires reinforced concrete to be placed on the neighbour’s land then under Section 7(4) you cannot do so without written consent from the Adjoining owner. If the Adjoining owner does not consent, then this could add time and costs to the build as the design will need to be changed.

Developing a basement could also involve cutting in to the existing party wall to place bearing beams or even building a new party wall astride or up to a line of junction. All of which will require you as the Building Owner to serve Notice on the neighbours affected.

Any works involving a basement conversion could adversely affect the adjoining owner’s property. As the Party Wall Act has a unique dispute resolution mechanism it deals very well with the structural design and execution of the works. Invoking the Party Wall Act can protect both the Building Owner and the Adjoining owner by initially ensuring that best practices are followed to a high standard and then should any damage occur, by compensating the affected party.

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It’s our Wall, In the middle of (the junction of) our Land…..

A building owner had the misfortune of a property fire which not only gutted the building but also caused the existing Party fence wall to burn down.

Luckily the Building owner was insured for such occurrences and is able to rebuild his property. Being a responsible Building owner, they want to follow the correct procedures and have contacted Party Wall Services and asked for our help to ensure the correct notices are served on their adjoining owners.

The issue has arisen because the new design for the property means that the Building owner would prefer not to have a party fence wall and instead build completely on their own land. Now most neighbours would say what’s wrong with that? You are giving me extra land.

Firstly under the Party Wall Act, can the Building owner rebuild the wall solely on his own land? Secondly, is the neighbouring property really gaining from such a decision?

Under section 2(2)(b) of the Party Wall etc. Act 1996, a building owner shall have the right “to make good, repair or demolish and rebuild a party fence wall in a case where such work is necessary on account of defect or want of repair”. Obviously the party fence wall is in need of repair and as it is an existing Party Fence wall the Building owner is not building a new party fence wall under section 1. But no provision is given if the building owner wants to rebuild on his own land. The adjoining owner is well within his right to insist that the party fence wall is rebuilt as it used to be his party fence wall as well.

Arguably, if the Party fence wall is rebuilt as a boundary wall, the Adjoining owner would not have the right to use it to enclose upon without express consent and may then have to build another wall against it. So although he might be benefiting initially from additional space, he would later be loosing out by having to build another wall up against it if he were to ever want to use that elevation in an extension. The gained space without the extension would be lost with an extension and the addition of another wall.

In this circumstance, although the Building owner wants to build a boundary wall, the Adjoining owner can insist that the wall is rebuilt as a Party Fence wall but in doing so he would incur costs equal to his benefit of the wall for rebuilding it. The decision on the part of the building owner not to rebuild the party fence wall has actually been welcomed by the adjoining owner as they believe they will be better protected from the additional ‘fire break’ that the gap give them in having separate walls should they have the misfortune of suffering another fire.

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No Smoke Without Fire… Or so they say!?!

We were recently contacted by a building owner hoping to carry out some much needed remedial works to a jointly owner chimney stack, unfortunately despite the extend of damage to the chimney which was significantly affecting the functionality of the chimney the adjoining owner was not interested in discussing the repairs. Not surprisingly the adjoining owner was even less interested in discussing the costs of the repairs or their responsibility to pay a fair proportion of these.

The building owner contacted Party Wall Services and we were able to reassure them of their rights under the act to firstly have the repairs undertaken and equally as importantly to reclaim a fair proportion of the costs from the adjoining owner, even without them directly agreeing to this. Obviously in practice this is not always as simple as it should be to resolve these issues but the fact remains that is a structure is jointly owned it should be repaired by both/all owners, depending on the benefit to each of them and costs split accordingly.

The Act is there to protect structures and to allow works to progress, particularly where an avoidance of undertaking remedial works will have a detrimental affect on the structure as a whole.

In cases such as these it is important that the surveyor/s act within their remit to resolve the dispute under the Act and to ensure that the award is correctly and fairly detailed and proportioned. Evidence of costs should be appended to the award and any other supporting evidence referenced.

Once an award is in place, if not challenged in a County Court within 14 days, the adjoining owner will be legally required to pay the amount determined by the surveyor/s. In addition the award will be likely to include details relating to access and so enabling the building owner and/or their advisors/contactors to undertake any works that are necessary to be undertaken from the adjoining owners side.

This is a great example of how the Act benefits all parties and structures equally and certainly refocused the appointed surveyor/s of the duty of their role.

Smoke without fire… well in this case the smoke put out the fire, at least until the Act came in! Ifyou find yourself in a similar situation, please contact us for some free advise and further information of what to do and when.

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When to Fee… What to Fee?

It may come of little surprise to anyone that fees are of a constant concern both to those who are liable to pay them and to those putting forward what is reasonable. Another issue often raised is when the fees incurred should be paid. It is a well known fact that an award cannot be held to ransom over fees and as such, the correct answer to this is that fees should be paid duly after service of an award, if however the owner agrees to interim invoices or for fees to be paid on account this is fine but should be document fully and correctly, as agreed within the award.
The Party Wall Act 1996, in contradiction to the common misconception, does not actually state that all fees must be paid, it leave this element up to the two surveyors to decide if and what is appropriate. It is true that if the two surveyors (if indeed two are appointed) award a fee to be paid it is duty bound that the building owner pay the sum agreed, in some cases the surveyors may also agree that fees should be split between the adjoining owner/s.
If an award is not contested within 14 days of receipt by either affected party the fee must be paid and if it is not the surveyor whom has not received payment may present the Award in Court and an enforcement can be made of the Owner who, by refusing to pay the sum due, is in breach of the award.
If however, the award is contested in court, on the basis of the fees included therein being excessive, it would be for the judge to decide what is reasonable. My thought on the matter is that, as a practising party wall surveyor, one should know what is and is not reasonable. We can easily clarify how time has been spent on a job by asking for timesheets to be submitted by the surveyor concerned. My instinct usually serves me correctly when instead of offering a timesheet the surveyor automatically reduces there fee. Whilst this may be the result I had hoped for, so as to ensure that the matters is property handled I will still insist that a breakdown is supplied.
It is the duty of the surveyors appointed to ensure that fees are reasonable and if they are not this should be discussed from the outset and no award agreed until the matter has been satisfactory addressed.
That brings me onto hourly rates, whilst we can all determine what we feel is reasonable and negotiate the hours that have been duly or unduly spent it is more difficult to confront hourly rates. The more experienced the surveyor the higher the fee, the more efficiently they work? Not always and unfortunately this is an issue which does not have a black and white answer. More often that not, particularly with experienced surveyor, some elements of the works undertaken to reach an award are carried out by more junior members of staff. This allows the experienced (and more expensive) surveyor to concentrate on the specifics of the award itself whilst the junior staff member undertakes the schedule of condition and handles day to day enquiries. This has proved to be a successful way of maintaining consistency, ensuring the validity of awards and keeping costs relative and reasonable.

My Final thought on the matter is this…. Fees that are incurred must be relevant and ethical, soething we pride ourselves upon at Party Wall Services. I do not feel that the building owner should be penalised if an adjoining owner is particularly time consuming of misses appointments etc. If fact, I believe in cases where the adjoining owner appears to deliberately cause obstruction they themselves should be awarded to pay the relevant sum. That being said it is very rare that such issues arise and in most cases both the surveyor/s and owner/s are reasonable and happy to have any dispute brought to a close diligently.

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Greener on The Other Side? – Let’s Make the Change NOW!!

We are living in an era of greener thinking and greener working. We can barely get through a day without coming across new ‘green’ schemes, even busses have green messages in place of adverts and we are all very conscious of our roles in making our world a safer and more sustainable place but how on earth does this affect the way we work as Party Wall Surveyors?
Well, whilst it may take a moment or two more to come up with a realistic plan for our business, the latest ‘Green Issue’ of Modus really helped me to focus of the impact we can have just be being a little more conscious and aware of our actions.

At Party Wall Services we have now implemented a few key factors in making us greener and more sustainable:-

1) When we are not in the office of actively working from it all electrical devises are turned off, not onto standby.
2) We try to arrange site visits that make more economic and environmental sense by logically arranging them geographically favourably (which saves time and expense as well). In order to really push this idea with clients we offer a reduction in our fee where we are able to secure all appointments to neighbouring premises on the same day.
3) We aim to use the surveyor in closest vicinity to the job to undertake the survey work, again reducing CO2 omissions and time spent in travel.
4) We recycle ALL of our waste paper and are looking into options with out other waste products.
5) We have added an environmental notice to our emails asking that our clients also check the necessity of printing off documentation before doing so.
6) Wherever possible to retain and use only digital information. Printed documents are kept to a minimum.
7) Where possible and logistically feasible we use public transport to get around.
8 ) We are asking our clients to provide us with their development plans from a sustainable development perspective and in doing so hope that we can play our part in spreading the ‘Green Light’.

We are proud to be making Party Wall Services a more sustainable and greener business and are hoping to improve of our list of procedures in doing so.

We would welcome your thoughts and feedback on this article and how you are making changes so as to ensure that it is greener on our side as well as next door from now on.

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