BUILT ENVIRONMENT JOURNAL

Why party wall surveyors must remain impartial

Comment: Party wall surveyors are required to act impartially under the law whatever the circumstances, as a landmark 2018 case underlines

Author:

  • Irene Moore

21 May 2024

Row of English terraced houses

For centuries surveyors were referred to as arbitrators, a name that implies impartiality.

A surveyor does not represent the interests of a particular party. They may advocate for that party at a tribunal, but they are otherwise wholly detached and only interested in a fair determination of the dispute.

Neighbours dispute each other's basement schemes

Such detachment can prove difficult, especially when it comes to issues with party walls. However, this makes it all the more important, and the courts will recognise when surveyors have been unduly influenced by their appointing owners or clients and when they have not.

In 2018, Judge Edward Bailey handed down a judgment in Welter v McKeeve, an appeal under the Party Wall etc. Act 1996 that offers instructive guidance on the duties of party wall surveyors in particular.

In this appeal, building owner Jens Welter had appointed a surveyor – Peter Davies FRICS – in connection with a proposed basement development. The adjoining owners – Raymond and Belinda McKeeve – dissented to the plans, and appointed surveyor Nigel Acres AssocRICS to represent their interests.

In due course, Mr McKeeve also decided to undertake a similar scheme. He retained his surveyor for this project, and Welter likewise retained his.

This meant that Davies, the first scheme's surveyor, was now acting as an adjoining owner's surveyor for the second scheme, while Acres, as the adjoining owner's surveyor, had become a building owner's surveyor. The third surveyor was different for each scheme; for the first scheme it was D. R. Toogood FRICS.

When the second scheme progressed, contractors soon discovered that the underpinning from the first had trespassed into the site of the second. They also found it to be of poor quality, requiring remedial work.

So began a series of back-and-forth emails, over a considerable period of time, between the two owners' surveyors. This eventually escalated, with the first scheme being referred to the third surveyor in relation to the remedial work.

Related article

Party walls and the public

Read more

Judge contrasts surveyors' behaviour

During the judgment, Judge Bailey said Davies, acting for Welter as the second scheme's adjoining owner:

  • maintained throughout both the proper detachment required for an impartial tribunal, and the care and thoughtfulness required of a professional surveyor engaged in the proper performance of the statutory dispute resolution role imposed by the 1996 Act
  • was conscious that the owners of both properties had obtained party wall awards to carry out works at their properties, and had thought through whether in any particular instance he was acting as the surveyor appointed by the building owner or by the adjoining owner – a particularly relevant consideration where there were different third surveyors for each party wall procedure
  • had due regard to considerations relevant to the proper performance of his appointment as a party wall surveyor responsible for the operation of the dispute resolution procedure under the 1996 Act
  • maintained a proper level of detachment from owner and contractor, made proper enquiries in connection with the remedial scheme, and used his own expertise as a surveyor consistent with his role as an impartial arbitrator.

Acres, the surveyor for McKeeve, later stood down from the second scheme and in due course also was replaced on the first by Mark Williams FRICS. Nevertheless, the judge criticised Acres for: 

  • giving every appearance of being little more than a mouthpiece for the appointing owner
  • not appearing to take his statutory duties seriously
  • appearing to bully the adjoining owner's surveyor
  • ignoring the clear warnings presented to him by his opposite number. 

In conclusion, Judge Bailey modified the award made by Toogood as the third surveyor, ordering that Welter pay McKeeve the sum of £47,977.30. This was much lower than the £148,882.32 plus VAT McKeeve sought under Toogood's award, which was therefore rescinded.

Under section 7(2) of the 1996 Act, a building owner shall compensate any adjoining owner for any loss or damage by reason of any work executed under the act. Since McKeeve had in this case carried out remedial work to the underpinning constructed as part of the scheme by Welter, the former was due compensation, albeit not as much as the inflated figures.

If Acres, as McKeeve's surveyor, had employed the services of a quantity surveyor or undertaken his own calculations then the matter should not have taken so long to agree, and the scheme could have been completed in a timely manner.

Balancing cooperation with rigour

Therefore, in the words of the judgment, the appeal 'presents a perfect paradigm of how a party wall surveyor should and should not approach [their] task...The party wall surveyor must act impartially and professionally. [They are] not an agent of or mouthpiece for the owner who appointed [them].'

Cooperation is the key to undertaking the role of a party wall surveyor. This should be embedded in understanding the corresponding surveyor's point of view, and both surveyors trying to reach an agreement.

However, cooperation does not necessarily entail agreement about everything. In fact, it means quite the contrary – it requires meticulous review, engagement, and challenging what has been put in front of you. The other owner's surveyor should respond accordingly.

It is my opinion that surveyors can reach agreement, respectfully challenging each other where necessary, in a way that ensures mutual understanding and the best outcome. Ego should have no place in this process.

Surveyors should accept when they have been in the wrong, and humble when communicating any such matter to their appointing owner. After all, it is the owners who must incur the cost and delay to their schemes.

Pressure from an appointing owner or a contractor to produce an award speedily can never excuse the party wall surveyor from a failure to act in the proper manner.

'Surveyors can reach agreement, respectfully challenging each other where necessary, in a way that ensures mutual understanding and the best outcome'

Support available to fulfil statutory duties

The Pyramus & Thisbe Society and the Faculty of Party Wall Surveyors were both cited during this case by Judge Bailey.

He said that, as membership groups, they should remind party wall surveyors of the need to be aware of their statutory responsibilities. These groups also provide continuing professional development in the form of talks and seminars, offering a wealth of knowledge for any surveyor who wishes to practise in this field.

Both groups expect their members to act impartially and without bias, ensure that the spirit of the 1996 Act is entered into, make decisions fairly and objectively with honestly and integrity, and discharge all responsibilities with reasonable skill, care and expedition.

Furthermore, the first of RICS' Rules of Conduct states: 'Members and firms must be honest, act with integrity and comply with their professional obligations, including obligations to RICS.'

Honesty and integrity are central to both membership groups, and every surveyor must ensure that they always provide their services in good faith with the utmost respect for others, so as not to prejudice their appointing owners or bring their profession into disrepute.

Act enables role to be non-adversarial

It is important to note that, while party wall surveyors are appointed for differing owners who are at odds with each other, their positions are not adversarial in the sense that opposing solicitors would be. Instead, it is a situation where two heads, or even three, are better than one.

Some surveyors find it helpful to view the wall structure itself as the client, and ensure that any agreement is in its best interest and not that of the owners. The owners themselves may not get along, and their objective may, on occasion, be to frustrate the works of their neighbours.

The surveyors should act in the interests of the parties, the owners and users of the wall in determining the dispute under the 1996 Act, and this should be for the benefit of both parties. Where a single, agreed joint surveyor is appointed for separate owners or demises, the same is expected of them when discharging their duties.

The legislation is an enabling act because it allows owners a mechanism for preventing disputes in relation to party walls, party structures, boundary walls and excavations near neighbouring buildings, and – where they cannot be prevented – resolving them.

Simply put, the main point of the act is to facilitate development, through the administration of the rights of the parties in a jointly owned or used structure. This involves peripheral matters, such as allowing footings on adjoining land if necessary and underpinning other people's buildings to enable excavation.

Ancillary to this is section 10 of the 1996 Act, which deals with the resolution of a dispute that arises or is deemed to have arisen between a building owner and an adjoining owner relating to work under the act.

Essentially, it is the party wall procedure manual for dealing with the dispute itself; that is, with the appointment of surveyors and the making of an award.

'Some party wall surveyors find it helpful to view the structure itself as the client, and ensure any agreement is in its best interest and not that of the owners'

Stay alert to potential conflicts of interest

It is the opinion of some property and legal professionals that surveyors should raise any perceived conflicts of interest with owners before appointment – for example, when acting on behalf of a colleague in their capacity as an owner – and only when the other party does not view it as a conflict can the instruction proceed.

My opinion is that such a conflict only arises on personal projects, meaning that one cannot and should not appoint oneself on one's own project and be client and surveyor simultaneously.

However, if any surveyor finds themselves in an actual conflict – such as acting on a project in which they have some vested interest or are one of the owners – or where they feel they cannot act impartially for any reason, they should recuse themselves. This is even more important if they are an agreed joint surveyor.

If an appointed surveyor finds themselves in a situation where they feel that an owner or another surveyor is prejudicing their position, that surveyor should simply not allow any conflict to cloud their judgement and press on. Deeming oneself incapable of acting is an extreme measure, which should not be done on a whim.

Whether there is a conflict of interest is more a matter of judgement, especially when the facts are not conclusive, as for example in the following cases.

  • A surveyor with an interest in the property is definitely out.
  • A surveyor who is in a client relationship with any of the parties is not mentioned in the act, but to be appointed in these circumstances is perceived as a breach of protocol.
  • A surveyor who is doing anything that can be considered to be in a conflict of interest but where this is only a perception should consider their position, and either make a firm decision to proceed or step down.

In my opinion a surveyor should not have a relationship with any of the parties, whether familial or otherwise, unless the other party accepts this. I would extend that to say it is not good practice for two surveyors on either side of a party wall dispute to come from the same firm.

One actual example was a father and son firm where the father was acting as a building owner's surveyor and in due course appointed his son as the adjoining owner's surveyor under section 10(4)(b) of the 1996 Act, which offers this recourse if a party refuses or neglects to appoint a surveyor in the prescribed periods.

The father and son ran two separate business in the same premises with no real separation, both being directors of their respective companies. This appointment therefore came in for heavy criticism from other surveyors.

Problems can be avoided by acting impartially

I believe the proper attitude is to act impartially and to be seen to be doing so: a surveyor is required to act impartially regardless of any connection with the parties.

Impartiality is foundational to the conduct of a party wall surveyor to ensure that matters do not get adversarial. However, where they do then the very conduct of the appointed surveyor or surveyors is what will set them apart if their work is scrutinised by a judge.

Being adversarial may not foster the right environment for reaching an agreement in a timely and cost-effective manner, and may be frowned on in a judgment. One can challenge one's counterpart without being adversarial.

Surveyors are in the strange position of having to advise their appointing owners on their positions under the act, and possibly also advising the other party in a similar fashion, and then acting impartially when determining the dispute.

 

Irene Moore is a partner and party walls neighbourly matters surveyor at Fareed Fetto
Contact Irene: Email | LinkedIn

Related competencies include: Conflict avoidance and dispute resolution procedures, Ethics, Rules of Conduct and professionalism,  Legal/regulatory compliance

Enabling RICS SME members to thrive

At RICS, we want our SME members to flourish. Our SME Business Support Hub is a great place to start finding out more.

Whether an experienced or start-up SME, you'll find tailored support and resources, such as: 

  • guidance on business models
  • statutory requirements
  • insurance
  • financial management
  • marketing and promotion
  • practical advice on aspects of buying, selling or leasing property.

We also send a monthly SME newsletter, sharing relevant support, insight and knowledge. You can sign up for this by emailing RICS directly.

Our quarterly UK Economy and property market update is also designed with SMEs in mind, providing the kind of detailed analysis and insight that may otherwise be out of reach. We conduct regular webinars as well, to take members through the latest updates and provide a forum for their questions.

Related Articles

PROPERTY JOURNAL

go to article How regulatory reviews help improve valuation practice

CONSTRUCTION JOURNAL

go to article What's new in the JCT 2024 Design and Build contract?

BUILT ENVIRONMENT JOURNAL

go to article What we learned in developing an HRB safety case process