“Appoint” –v- “Instruct”

Section 10 (1)

Where a dispute arises or is deemed to have arisen between a Building Owner and an Adjoining Owner in respect of any matter connected with any work to which this Act relates either

(a)     both parties shall concur in the appointment of one Surveyor (in  this Section referred to as an “Agreed Surveyor”);  or
(b)    each party shall appoint a Surveyor and the Two Surveyors so appointed shall forthwith select a Third Surveyor (all of whom are in this Section referred to as the “Three Surveyors”).

Section 10 (2)

All appointments and selections made under this Section shall be in writing and shall not be rescinded by either party. 

Both clauses refer to a Surveyor who is defined in Section 20 as “any person not being a party to the matter appointed or selected under Section 10 to determine disputes in accordance with the procedures set out in this Act.”

It is to be noted that Surveyors are appointed not instructed.  The difference between the words is important.

Appointed is defined as “to be named to an office”,
Instructed is defined as “to order or command”. 

A Surveyor is appointed to administer the provisions of the Act in order to settle an actual or deemed dispute. 

A Surveyor is instructed to carry out the bidding of their client. 

Some Surveyors distinguish the two words by expressing the view that their client is the wall, not the parties.  To emphasise the point a Surveyor refers to their appointing owner not client. 

Notwithstanding the Party Wall Surveyor’s duty to act independently ie not under the instruction of the client, it is the liability of the appointing owner to pay their fee.  In the ordinary course of events the Adjoining Owner’s Surveyor’s fee is reimbursed by the Building Owner under an Award made by the Surveyors.  Where a Building Owner omits to pay the Adjoining Owner can sue or the Adjoining Owner’s Surveyor can obtain a letter of assignment and then sue directly.  In practice it is normally the case that the Adjoining Owner’s Surveyor agrees a fee with a Building Owner’s Surveyor and it is settled directly by the Building Owner. 

Apart from being one of the parties anyone can be appointed as Surveyor under the Act, however, it is commonsense that the person should have experience in all forms of building construction and a working knowledge of the Act.  The role of the Party Wall Surveyor is not one of “box ticking”.

It is advisable to seek advice from a competent Party Wall Surveyor before notices are served – it may be possible for the Surveyor to suggest amendments to the Building Owner’s proposals minimising the impact of the work on the Adjoining Owner or indeed avoiding the service of notice altogether.

Amongst the matters the Party Wall Surveyor (acting this time under instruction from a client) can advise on include:-

-    the rights and obligations of the parties
-    how the design teams proposals may be modified to the benefit of both parties
-    the validity of notices
-    the effectiveness of design information to show the Adjoining Owner the scope of the works
-    the likelihood of the Building Owner gaining consent to their work without the need to serve notices
-    how to obtain owner’s information from the Land Registry
-    the suitability of meeting the Adjoining Owner to explain the proposals prior to service of notice

In order to save costs Party Wall Surveyors frequently rely upon the design team’s information without having first visited the property.  It is therefore possible that full notice of the proposed works is not given and this may lead to the service of additional notices as and when the nature of the work is clarified.  It should be noted that in these circumstances delays may occur. 



Keith Douglas FRICS. MCIArb
info@keithdouglaspartnership.co.uk
5 December 2014

Party Wall Articles/Appoint v Instruct