Should you challenge a Party Wall Award?

Why should you if you and the other party are honest, reasonable people who do not wish to obstruct lawful rights, have both appointed Chartered Construction Professionals as your Surveyors, who in turn have experientially (not naively) selected a Third Surveyor – therefore don’t as there will be no need to; an argument absurdum exists!

However on occasions awards are served which are not valid.  An award must:

• be intra vires and therefore it should not be ultra vires (within the surveyor’s jurisdiction not without)
• have the ability to facilitate enforcement
• have cogency
• be complete
• be certain
• be final
• be enforceable
• be consistent
• be compliant with a submission
• if based on recitals be consistent with those recitals and those recitals must be truthful
• not be partisan

If an award is ultra vires what is the point of utilising rights to challenge it under section 10 (17) in a court?

• A third surveyor can not demand payment up front for an ultra vires award or indeed following its serving
• A surveyor can not demand payment from an ultra vires award
• Surveyors can not award damages from an ultra vires award
• Therefore an award which is ultra vires should be ignored (if it is in the Party’s best interest so to do)
• Let the transgressor prove intra vires in court by pursuing you not the other way around.

The reasons for invalid awards:

ULTRA VIRES

• No dispute exists
• Person claiming to be the Party Wall Surveyor has no jurisdiction
• Notices not served or incorrectly served
• Appointed person is not a registered Building Surveyor with a Chartered Institute
• Third surveyor does not act judicially as follows:
  • Serves award when no dispute exists (one surveyor claims there is a dispute the other does not) – burden of proof rests with the surveyor asserting there is a dispute: the fact in issue more probably occurred is the balance of probabilities test for civil litigation
• Party Wall Surveyor or Third Surveyor do not understand:
  • The act
  • Their jurisdiction intra vires
  • Law and statutes
• Racking up fees
• Third surveyor and one of the surveyors are working together – an indicative test of this is who profits from such action; the award will enrich both surveyors and the recitals within the award will do down the other surveyor as a smokescreen to hide the enrichment.

How to avoid invalid awards:

• Ensure all surveyors are registered surveyors with a Chartered Institute
• Ensure third surveyor is selected experientially not naively
• Research case law for Third Surveyors and Party Wall Surveyors who have made awards which were invalid and avoid such surveyors  ie

Google – enter the following into search engine:

• tanfield chambers *name of third surveyor or party wall Surveyor*
• Tanfield chambers party wall case law
• judge bailey tanfield chambers party wall
• https://www.bailii.org/ew/cases/EWHC/TCC/
  • Search = party wall act
  • Search = name of third surveyor or surveyor
• https://www.bailii.org/form/search_cases.html
  • England and Wales courts – Tick technology and Construction
  • Exact phrase – party wall act
  • All these words – name of third surveyor or surveyor
  • Nb as you scroll through the judgement “party wall act” and the surveyor name will be highlighted

Bruce is compiling a data base of third surveyors and surveyors who it has been judged have made invalid awards – please send over your research to bruce@thirdsurveyor.co.uk