Context:

Definition of ‘Surveyor’ under the Party Wall etc. Act 1996:

“surveyor” means 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.

Caselaw:

Booyah Investments Limited -v- the Lower Norwood Cooperative Building Company Ltd (2021)

Overview:

This case concerns an Award that was made between me and another Surveyor in circumstances where I was appointed as Building Owner’s surveyor under S. 10(4) of the Act. The Building Owner had initially appointed another surveyor, who proceeded to serve Notice on the Adjoining Owner, following which the Adjoining Owner appointed a Surveyor.

As part of his due diligence, the Adjoining Owner’s Surveyor noted that the Building Owners’ appointed surveyor was a shareholder in the Building Owner (a Limited Company). He contended therefore that the Building Owner’s surveyor could not act as a surveyor (defined by S. 20 of the Act) as his shareholding in the Building Owner company meant that he was a “party” and was therefore debarred from acting as surveyor.

The Adjoining Owner’s Surveyor proceeded to serve a 10-day notice on the Building Owner requiring them to appoint an alternative surveyor. The Building Owner did not do so, stating that their original surveyor appointment was valid. On expiry of the 10-day notice, I was appointed as Building Owner’s Surveyor in place of the original surveyor for the reasons set out above.

I proceeded to make an Award and the Award was not appealed. The Award dealt with the works and defrayed fees against the Building Owner. The Building Owner failed to pay the fees.

The Adjoining Owner paid his surveyor’s fee directly and then sought to enforce the Award in the County Court in order to recover those costs from the Building Owner. The Adjoining Owner, Booyah Investments Ltd, was therefore the Claimant in this case, and the Building Owner, The Lower Norwood Co-operative Building Company Ltd, defended the claim on the basis that the Award was defective in that the statutory process had not been followed correctly as their original surveyor appointment had been valid all along.

The Judge awarded in favour of the Building Owner / Defendant as there was sufficient separation between the Building Owner’s original appointed surveyor and the Building Owner company such that the Building Owner’s surveyor was not a “party” for the purposes of the definition of “Surveyor”. Accordingly, the Court held that the Building Owner’s surveyor appointment was valid and thus the Adjoining Owner’s Surveyor was not able to appoint me in the capacity of Building Owner’s surveyor.

It is unclear from the Judgement whether the Award was set aside; but costs were awarded against the Adjoining Owner in full and their claim dismissed.

In conclusion, provided a surveyor, as a natural person, is not a mere cypher or mouthpiece for a Building Owner (see Gray v Elite Town Management) , they can be an employee, shareholder, Director or have another interest in that company and remain within the s.20 definition of a ‘Surveyor’.

This Judgement was given in Wimbledon Magistrates Court and so is not binding on other Courts. Having discussed this Judgement with a number of people in the legal profession, it remains questionable as to whether the correct decision was reached …

Ashley Patience MRICS

Delva Patman Redler