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What is today's blog about?
In this blog, we look at the revised RICS Guidance Note, Party Wall Legislation and Procedure (7th Edition, August 2019). Essential reading for AssocRICS and RICS APC candidates.
You can also listen to our CPD podcast on Anchor for more free AssocRICS and RICS APC training and support.
What’s new?
The new RICS Guidance Note, Party Wall Legislation and Procedure (7th Edition, August 2019), replaces the former 6th Edition.
It provides guidance to RICS members who deal with instructions under the Party Wall etc. Act 1996 (the Act) in England and Wales. The Act was amended by the Party Wall etc. Act 1996 (Electronic Communications) Order 2016, effective 6 April 2016.
The key changes in the new Guidance Note relate to professional conduct and a revised suggested draft award.
When is the guidance effective from?
1 December 2019.
What is the definition of a surveyor under the Act?
The role of a party wall surveyor is a statutory appointment. A surveyor is defined as ‘any person not being party to the matter who is appointed or selected under Section 10 to determine disputes in accordance with the procedures set out in the Act’.
The Guidance Note explains the role of surveyors acting for clients in the early stages of party wall matters, as well as the duty of surveyors formally appointed to administer dispute resolution procedures under the Act.
What is the definition of an owner under the Act?
Section 20 defines an owner as anyone with more than a yearly tenancy. There could be more than one owner for the same property, e.g. a freeholder and a long leaseholder.
What level of professional conduct is required of party wall surveyors?
Compliance with statutory obligations
Adherence to RICS Rules of Conduct and professional and ethical standards, e.g. avoiding conflicts of interest, ensuring adequate knowledge, skills and experience and carrying out work in a timely manner
Although party wall surveyors have a quasi-judicial function, this does not provide judicial immunity. In the event of RICS disciplinary action, a party wall surveyor could be found liable if they have acted in bad faith or incompetently.
Who do party wall surveyors owe duties to?
A surveyor can advise a client on the application of the Act or serve notices upon their behalf.
However, once appointed to perform a statutory function under the Act, a surveyor will owe duties to both parties to the dispute.
Therefore, rather than referring to the client, the party who makes the appointment is known as the ‘appointing owner’. The appointed surveyor owes a duty of care both to their ‘appointing owner’, but also to both owners to act diligently and impartially in line with the Act.
A brief summary of the Party Wall etc. Act 1996…
The Act defines the relationship between neighbouring owners (or occupiers). It facilitates specific construction work on or in proximity to adjoining properties’ boundaries (typically party walls). It does this by providing a framework to notify neighbouring owners of proposed construction operations/works.
Construction operations are defined as line of junction works, works to party walls and certain other boundary structures and adjacent excavation works.
Section 8 allows works to be carried out on a neighbouring owner’s land which would otherwise constitute the tort of trespass or nuisance, providing that inconvenience and disturbance are minimised.
What is the definition of a party wall?
Section 20 defines a party wall as either:
Type A – ‘standing on the land of two owners to a greater extent than simply projecting foundations’
Type B – ‘part of a wall standing on the land of one owner that separates the buildings of two owners’
How does the notice procedure work?
The statutory procedure is commenced by primary notices being served. Strict time limits and notice requirements set out in the Act must be adhered to for the process to be valid.
When a notice is received from a building owner, the adjoining owner can do one of three things; do nothing, consent to the works as proposed or dissent from the works as proposed.
If this gives rise to a dispute, then the statutory dispute resolution process set out in Section 10 commences and party wall surveyors, with statutory roles, will be appointed.
What is the role of the surveyor?
The surveyors’ role is to the balance the interests of the two neighbouring owners. This is through an award defining work permitted under the Act and then undertaking reasonable inspections of the relevant work.
There are three types of party wall surveyor in this instance:
Agreed surveyor – appointed as a single surveyor to resolve the dispute
Appointed surveyors – appointed separately by each party to resolve the dispute
Third surveyor – where there are two appointed surveyors, they will select a third surveyor as a quasi-arbitrator to form a ‘practical tribunal’. There is no third surveyor role where there is only an agreed surveyor
What is included in the primary award?
Following a pre-works inspection, the building owner’s surveyor will send a draft award to the adjoining owner’s surveyor, which they then seek to agree. The third surveyor can be involved at the request of either appointed surveyor to settle a point in dispute, by way of a separate award only relating to the referred dispute.
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N.b. Nothing in this article constitutes legal, professional or financial advice.