• Ben Mackie

Why are Party Wall Surveyors ignoring the case of Amir-Siddique v Kowaliw [2018]?


Why are Party Wall Surveyors ignoring the case of Amir-Siddique v Kowaliw [2018]?

The potential implications of the case of Amir-Siddique v Kowaliw are resounding. A Building Owner wished to undertake a residential build, and the neighbours refused to allow the Building Owner to use their appointed Surveyor to act as the ‘Agreed Surveyor’.



I have previously written about the failure of the ‘Agreed Surveyor’ role, primarily that the uptake of such appointments is much lower than the Party Wall Act intended. The case of Amir-Siddique v Kowaliw is an opportunity to get the administration of the Act back on track. Several years have now passed, and little has changed. This article looks at some of the reasons as to why the status quo remains.


To recap, in Amir-Siddique v Kowaliw, Judge Bailey considered the refusal of the Adjoining Owners to agree to their appointed surveyor, Mr Godwin, acting as agreed surveyor.


Judge Bailey stated:

…it was the Respondents (the Adjoining Owners) rather than Mr Godwin (the Adjoining Owner’s Surveyor,) who insisted on the “two-surveyor route” as the Respondents termed it. This was unreasonable behaviour on the part of the Respondents. They were well aware that the Appellant wished to keep surveyor’s costs to a minimum. The Appellant was prepared to accept the Respondents’ choice of surveyor to act as Agreed Surveyor. The Respondents could be assured that their interests would be looked after by Mr Godwin acting as agreed surveyor as adjoining owner appointed surveyor. There can be no obvious reason for the Respondents to insist that Mr Godwin acted only as their party wall surveyor with the inevitable consequence that the Appellant had to incur the cost of a second party wall surveyor, and they offered none. The Respondents felt entitled to insist on the “two-surveyor route” but not, in my judgment, on the basis that the Appellant had to pay all the additional costs.



… in light of the fact that the unreasonable behaviour of the Respondents has caused the Appellant to incur the wholly unnecessary cost of Mr Grewal’s fees of £595, I consider that it is just to allow the appeal so as to provide that the Respondents are liable to pay Mr Grewal’s fees (Mr Grewal was the Building Owner’s Surveyor).

Surveyors have the authority under the Act to Award fees. The case of Amir-Siddique v Kowaliw was avoidable. In simple terms, the Judge’s verdict found that the Surveyors could have determined that the Adjoining Owner should settle the Building Owner’s Surveyor’s fees. Fundamentally, the Surveyor’s findings were inherently wrong. The individual Surveyors should not necessarily be criticised, as they are working in a system that has normalised fee-generation and become complicit in aiding the involvement of too many Surveyors. The Agreed Surveyor role has failed, not because it is an insufficient role, but because the role of Surveyors is largely misunderstood. So too, is fee apportionment.

Arguably, the Judge’s findings should have served as a wake-up call to Surveyors. It could have led to reform, as well as a reduction in party-appointed dispute resolution which is more costly and adversarial. The failed Agreed Surveyor role could have been rescued and put at the forefront of dispute resolution, particularly for residential builds, as the Act intended. Often, I remind people of Lord Lytton’s words when introducing the Bill to the House of Lords: “Clause 10 deals with the resolution of disputes. In this particular instance, both parties can agree on the appointment of one surveyor. That is a step to be recommended most strongly…”

It raises the question as to why is this is not happening? Why have Lord Lytton’s words fallen on death ears and why are the Judge’s findings in Amir-Siddique v Kowaliw being ignored?

Because surveyors are financially incentivised to encourage the three surveyor-tribunal.

When an Adjoining Owner appoints his own Surveyor, the standard course of action is to proceed by the three-surveyor tribunal. Often, a Building Owner Surveyor is appointed prior to a dispute arising (or being deemed). There is no need for a Building Owner to urgently appoint a Surveyor, as it can reduce the chance of an Agreed Surveyor being appointed. A Surveyor only needs to be appointed when there is a dispute.

Furthermore, Surveyors are able to tactically downplay the Agreed Surveyor option to protect their own financial gain. In the instance that the Building Owner opts for the Adjoining Owner’s Surveyor, the Building Owner’s Surveyor will lose his fee. Collectively, the industry benefits from a three-surveyor tribunal as this route permits up to three, separate Surveyors to earn money (though the Third Surveyor only gets a fee when called upon). Gatekeepers of the Act are neglecting the promotion of Agreed Surveyor route and failing to apportion costs fairly. Section 10 of the Act does not address how Surveyors should apportion fees, nor does it explicitly state that the Building Owner is required to settle all fees. Cost apportionment is at the discretion of appointed Surveyors i.e. it is in our hands.

Many Surveyors will point to section 11 of the Act which deals with ‘Expenses’ (arguably different from costs), specifically Section 11(1):

Except as provided under this section expenses of work under this Act shall be defrayed by the building owner.

However, 11(2) very quickly refers us back to Section 10:

Any dispute as to responsibility for expenses shall be settled as provided in section 10.

We know that Sections 10(12)(c) and (13) give the Surveyors the opportunity to award costs as they see fit and fair:

(12) An award may determine—

(c) any other matter arising out of or incidental to the dispute including the costs of making the award;

(13) The reasonable costs incurred in—

(a) making or obtaining an award under this section;

(b) reasonable inspections of work to which the award relates; and

(c) any other matter arising out of the dispute,

shall be paid by such of the parties as the surveyor or surveyors making the award determine.

Surveyors have a huge amount of flexibility. For example, an Adjoining Owner may want an interim inspection for peace of mind. The Surveyors may determine that this is an unnecessary cost, but if the Adjoining Owner is happy to pay for it, the Award will specify the Adjoining Owner’s contribution to fees. Should neither the Adjoining Owner nor the Building Owner wish to pay, the Surveyors will need to decide on the necessity of the inspection and can choose to omit it altogether, or decide that such an inspection is actually necessary, in which case, the Building Owner is liable for costs. Regardless, Surveyors must be open-minded when determining costs, including under the circumstances by which the tribunal has been formed.

Unfortunately, until professional bodies like The Faculty of Party Wall Surveyors and the Pyramus and Thisbie Club look meaningfully at the implications of Amir-Siddique v Kowaliw, the case will continue to be ignored, and Party Wall Surveyors will continue to enjoy the status quo. It is they who will benefit the most, after all.

Company Info

Company number 10690966

VAT Number 267874350

Address

38 Saltash Road,

Hainault

Ilford

Essex

IG6 2NL

 © 2021 Marketing Yorkshire. 

Terms & Conditions