The party wall surveyor 'impartiality' myth
The Party Wall Act is rife with surveyors who claim to act impartially, yet unwittingly, often do anything but.
There is a general misconception that party wall surveyors are required to act impartially, at all times. This position is untenable, and the sooner this is realised, the better it will be for the industry as a whole.
To act impartially is to treat parties to the dispute equally and fairly. On the face of it, this is a noble ambition for surveyors administering the Act. Party wall surveyors like to dramatically and heroically state ‘I act for the wall!’ They seem prepared to die for this wall, in the name of the greater good. Such honourable endeavours ensure that party wall surveyors are held in high esteem by the grateful public… oh wait. Awkward. It would seem, that for some reason, the public are not very grateful, and party wall surveyors are not celebrated heroes.
This article looks at the damage done to confidence in the Party Wall Act by the misguided belief that party wall surveyors are impartial saints.
A dispute can be resolved by surveyors, either where one surveyor is appointed as an ‘agreed surveyor’ or where there are two party-appointed surveyors who form a tribunal.
An agreed surveyor is required to act impartially. A third surveyor too, selected by the two party-appointed surveyors, is also required to act impartially. However, where parties appoint their own surveyors, these ‘party-appointed surveyors’ are not required to act impartially.
The Party Wall Act places no obligations on surveyors to act impartially, save for the fact that a surveyor cannot be either the building owner or the adjoining owner. You can literally appoint any person to act as your surveyor, and the Act makes no attempt to oblige a surveyor to be suitably qualified or ethical. The Act, in Sections 10(3), 10(6) and 10(7) does attempt to regulate surveyor’s behaviour. An agreed surveyor, for example, can be removed from the process if he ‘neglects’ or ‘refuses’ to act. There is a degree of accountability here, and sections 10(6) and 10(7) take this even further with the introduction of the word ‘effectively’. This significantly widens the scope, as a refusal to act effectively is easier to prove than an outright refusal to act. Other than this, surveyor’s conduct is not mentioned any further, and so we are left to case law and literature to assess the requirement to act impartially.
In ‘The Law and Practice of Party Walls’ (2nd edition) Nicholas Isaac QC confirms that agreed and third surveyors must be ‘independent of the parties’ though he concedes that this is ‘less clear in relation to surveyors appointed by the parties as building owner’s surveyor and adjoining owner’s surveyor respectively.’ This concession does not bode well when placed in the context of impartiality.
The article that most aligns with my view is written by Paul Chynoweth titled ‘Impartiality and the Party Wall Surveyor’. He concludes ‘that party-appointed surveyors are primarily responsible to their own appointing owners. Unlike the agreed surveyor and the third surveyor they do not therefore appear, as individuals, to be subject to an obligation to act impartially between the parties.’
In the fairly recent case of Welter v McKeeve, Judge Bailey was primarily concerned with the duty to mitigate losses: “it is unreasonable to expect either a party wall surveyor to make an award, or an adjoining owner to foot the bill, where (a) no competing quotations have been obtained and (b) no detail is given as to how the price is made up of the one quotation that is presented for agreement, so that it may be analysed for reasonableness”. Judge Bailey then does something that whilst well-meaning, may actually be unhelpful. He added a commentary section titled ‘the approach to their task of the party wall surveyors’ where he stated ‘the party wall surveyor must act impartially and professionally. He is not an agent of or mouthpiece for the owner who appointed him. Acting impartially requires the party wall surveyor (whether an owner-appointed surveyor or a third surveyor selected by the owner appointed surveyors) not to favour either owner over the other.’
These comments have been seized upon by many surveyors who use it to confirm that impartiality applies to all surveyors in all circumstances. However, upon reading the case, this is not a matter of impartiality being brought into question, but more a case of surveyors refusing or neglecting to act effectively within the meaning of sections 10(6) and 10(7) of the Party Wall Act. This is illustrated throughout the judgement with numerous referrals to one surveyor ‘ignoring’ another, and even a clear case of refusal to act (paragraph 31): ‘[the surveyor] was not prepared to take the question of a detailed breakdown further.’
There are certainly cases that point to the idea that surveyors are not required to act impartially:
In McCardie, J. Selby v Whitbread & Co.: “the primary function of the Surveyors is to safeguard the interests of the AO...”.
In Chartered Society of Physiotherapy v Simmonds Church Smiles: ‘a party-appointed surveyor while no doubt retaining his professional independence is not obliged to act without regard to the interests of the party who appointed him. In practice matters in difference are regularly resolved by agreement between the two party-appointed surveyors without the need for the intervention of the third surveyor.
Moving away from the Courts, it is interesting in itself that the Act allows for the building owner and the adjoining owner to appoint a surveyor each. If, as is often touted, party wall surveyors are truly impartial, why would there be a need to allow for the appointment of more than one surveyor? Theoretically, the appointment of two surveyors would only serve to increase the fees that the building owner would be expected to pay. This seems inherently unfair, and unnecessarily burdensome, particularly if surveyors are prohibited from representing their client’s interests (using the term ‘client’ is often frowned upon by party wall surveyors who believe they should be impartial regardless of their role). It makes very little sense, appointing two impartial surveyors to agree and serve a document when this can be done using one impartial surveyor.
There has to be a fundamental difference when using two surveyors instead of one. It is well established that the building owner has to pay the adjoining owner’s surveyor’s fees, though in the case of Amir-Siddique v Kowaliw, Judge Bailey seems to offer a contradictory view to that found in Welter v Mckeeve. Here he found that the adjoining owner should pay the building owner’s surveyor’s fees because the adjoining owner had unfairly rejected the agreed surveyor solution. Is there ever a reason to reject the appointment of an agreed surveyor if he is obliged to act impartially? The very existence of the three-surveyor tribunal depends on the answer to this.
Many people elect to appoint their own surveyor for a variety of reasons including, as Matthew Hearsum of Morrisons Solicitors LLP says, ‘parties wanting (mistakenly) someone “on their side”.’ Should the building owner be obliged to pay for the adjoining owner’s mistaken views? Surveyors preach impartiality, yet when it comes to two-surveyor appointments, they proceed with little thought or care, happy to take the building owner’s money. The current interpretation suits the status quo as it encourages the unquestioned uptake of two-surveyor appointments, increasing the turnover of the industry as a whole.
Impartiality is a requirement where a surveyor is appointed to act as the agreed surveyor or selected as the third surveyor. However, it is a myth that impartiality must be applied to all appointments. This interpretation is unhelpful and puts surveyors in an untenable position. Paul Chynoweth gets it right in his article ‘Impartiality and the Party Wall Surveyor’ and he provides some helpful historical context: ‘Surveyors have traditionally undertaken negotiating roles on behalf of clients in property and construction contexts. The statutory role of party wall surveyor, which first appeared under the 1724 London legislation, originally involved no suggestion of impartiality. Surveyors were appointed by neighbouring owners and were required to represent their client's interests before the justices in the event of their failure to negotiate an agreement.’
By ignoring the concept that surveyors can liaise with and negotiate on behalf of their clients, surveyors are absolving themselves of their responsibilities to act ‘effectively’, a term which the Act refers to. The Act does not refer to ‘impartiality,’ quite deliberately. The existence too, of the three-surveyor tribunal, is also deliberate, and is formed to allow surveyors to represent their respective parties. Sections 10(6) and 10(7) are a safety net, requiring surveyors to act ‘effectively’. Had the surveyors in Welter v Mckeeve acted effectively, Judge Bailey would have had no need to hear the case, let alone comment on impartiality. There was a clear refusal to act effectively by a surveyor, and the Party Wall Act has a mechanism in place that could have dealt with that refusal, avoiding litigation.
The Party Wall Act can work very well, but blanket descriptions can be damaging, and whilst the idea that surveyors must act impartially at all times is nice, it is unhelpful and it hinders the finer workings of the Act. The agreed surveyor appointment is completely different from the two-surveyor appointment, and the sooner the public and the surveyors who administer the Act realise this, the sooner we can all have realistic expectations as to how the section 10 dispute resolution process should work.