How to sack your party wall surveyor…
It is well documented that you cannot sack your party wall surveyor, but this article challenges that.
The definition of ‘sack’ is to dismiss, or to remove someone from their job, and yes, it is possible to remove a surveyor from his job. Section 10(2) of The Party Wall etc. Act 1996 states that ‘all appointments and selections shall not be rescinded by either party’. ‘Rescinded’ means to cancel or to revoke. Nick Isaac QC states in ‘The Law and Practice of Party Walls 2nd edition that ‘appointments under section 10 are irrevocable, and unless a surveyor is willing to declare himself incapable of acting, his appointing owner has no choice but to continue to deal with that surveyor.’
This is not entirely true, and is probably stated on the assumption that the surveyor is acting fair and reasonably.
It is section 10(2) that is the reason why surveyors will tell you that they cannot be sacked. This is untrue, as if you simply read section 10(3) it states that an agreed surveyor who refuses or neglects to act for a period of ten days beginning with the day on which either party serves a request on him, the proceedings for settling such dispute shall begin de novo (from the beginning).
Section 10(3) is often overlooked, but it is clear that the Act allows for the removal of a surveyor from their job. The circumstances by which removal may take place is restricted to ‘neglect’ and ‘refusal’ and it is vital that these two points are understood, as they are very different. Also, section 10(3) applies only when there is an agreed surveyor, however, sections 10(6) and 10(7) apply to party appointed surveyors and instead of beginning de novo, one surveyor may proceed to serve an ex parte award or to act ex parte in respect of the subject matter of the request. For a surveyor to neglect to act, there must be a request and the passing of ten days.
Refusal: If a surveyor refuses to act effectively, then either the process can begin de novo if the surveyor is an agreed surveyor, or, a surveyor can proceed ex parte if he is one of two party-appointed surveyors. Refusal to act is different from neglect, and is far more sweeping. The use of the word ‘effectively’ in sections 10(6) and (7) dilutes the refusal to some extent (Bickford-Smith et. al. 2017). This is vital, as it completely changes the meaning of refusal. For example, a surveyor simply refusing to undertake an action because he believes he is right when in fact he is wrong, is refusing to act effectively. A surveyor is not appointed to make mistakes or to be wrong, and if a building or adjoining owner have appointed a surveyor who is acting improperly, advice can be sought from another surveyor. A request to act effectively can be made, and if the surveyor has refused to act effectively, the process can begin de novo. This is great news, as often parties are told that once you appoint a surveyor, you are stuck with him and the only recourse is to appeal at Court (which can cost tens of thousands of pounds).
Neglect: If an agreed surveyor neglects to act for a period of 10 days, the process can begin de novo. Neglect can be either complete inaction, or, simply being evasive. The word ‘effective’ is once again important, as it changes the meaning from outright neglect, to neglecting to do something effectively. Neglect tends to be one action, and if two surveyors are appointed and one neglects to act, the other surveyor cannot serve an ex parte award covering all matters, but can instead only act ex parte in relation to the subject matter i.e. a surveyor has neglected to agree an enclosure cost, so the other surveyor is entitled to set the cost as he sees fit. He cannot however, serve an ex parte award covering other aspects of the dispute as that would be taking it too far.
Agreement: For many, going through sections 10(3), 10(6) and 10(7) can be daunting, and there can be disagreements as to what neglect and refusal actually is. One way of avoiding these arguments is to literally abandon the Act altogether. This is essentially what happened in the case of Mohamed v Antino where the Judge Bailey noted 'Courts today are enjoined to encourage private resolution of litigation disputes, and there is no obvious reason why a different approach should be adopted to disputes which come within the 1996 Act dispute resolution procedure.' Interestingly, the two parties can even appoint another party wall surveyor, on the basis that their dispute, and any futures dispute, is settled by their chosen surveyor (or surveyors) by way of arbitration or agreement. This removes section 10 of the Act. and the offending surveyor is dismissed. Further, a reason for dismissal does not have to be given, it is merely enough that the parties have chosen to proceed by way of an agreement. Summary: If a surveyor is acting improperly, it is important to take advice. Issues can be navigated smartly, and in such a way that a surveyor can be dismissed. If an agreed surveyor is dismissed, the process starts from the beginning, and this can cause delays and frustrations, however, the surveyor will no longer be involved. Taking advantage of section 10(3) of the Act is rare, however, it can, and should, be more widely used. Surveyors hide behind section 10(2) and like to tell everyone that they can’t be sacked. Wrong. They can be – there just has to be some justification. If the surveyor is acting proportionately, appropriately, legally and necessarily, then there cannot be grounds for dismissal – and indeed it is unlikely there would be the motivation to seek it. Where there is the two-surveyor set-up, the offending surveyor can be bypassed, either via an ex parte award, or perhaps more safely, via an award with the third surveyor. That is, in effect, dismissal from the process. A surveyor, if acting properly, is protected by section 10(2) of the Act, but sections 10(3), 10(6) & 10(7) are there to hold surveyors to account.
Lastly, the Act can be abandoned altogether, and the parties to a dispute can have their matters resolved outside of the Act. Surveyors can be dismissed, though it often requires thinking outside of the box, that being said, there are options, and dismissal isn't always too difficult. References: Bickford-Smith et al (2017) Party Walls Law and Practice (4th edn). Bristol: LexisNexis Isaac, N. (2019) The Law and Practice of Party Walls (2nd edn). Moseley: Property Publishing #bloggingtips #WixBlog