Following planning permission we served a 3m excavation notice to a neighbour (who had put in an objection) under the party wall act. After 11 days of not hearing anything my husband went round to ask them their thoughts and remind them that if after 14 days we automatically enter dispute. They said that they want to cost us as much time and money as possible. My husband said he wasn't bothered (irritating them more) and walked away deciding to engineer around them and do raft foundations negating the need for a party wall award. Anyway on the 16th day (following our initial letter) they come to our house and hand us a letter stating they appointed a surveyor backdated to the 14th day. I advise them that we no longer plan to pursue that route, he says we have to, but I said we don't. The following day my husband contacts their surveyor to inform them that their services are not required because we are changing the design of the foundations and provided the contact information for our structural engineer. My husband asks out of interest what his fees are but explicitly says he's not to do work. The surveyor has since sent 2 emails chasing to find out what the status is of the design for the foundations and one also includes his hourly rate (no details totally open costs) which my husband didn't even read properly to notice the inclusion of his attachment with hourly rate. We then receive a 3rd email threatening injunction unless calculations are provided because we have begun demolition of our conservatory and utility to start excavation of the foundations. My husband didn't reply to any of their emails and merely asked our structural engineer to provide calculations/drawings to prevent an injunction. Anyway our structural engineer provides the calculations demonstrating a party wall award is not required. We then receive an invoice from our neighbours surveyors for 3 hours work (£450 +VAT) despite no work actually being done. Neither of can see how a surveyor can charge for merely accepting a 2 min phone call (in which we explicitly said not to do any work) and sending 3 chasing emails (all instructed by the neighbour). We and our structural engineer can't believe the cheek of him. And how someone with less qualifications can charge a higher hourly rate than structural engineer and architects. Does he have any legal leg to stand on though?
Party wall surveyor invoiced despite being told straight away that his services wouldn't be required
- Thread starter BSK
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I don't think it is as straightforward as that. This is quite complex and I admit not my main area of expertise but I think you need to be careful.
As soon as you served the notice you invoked the Party Wall Act. Whether they formally dissented or did not reply within 14 days you were in dispute and the fees start. Accordingly the AO's surveyor is entitled to be paid for the work done to date until such time as it was agreed the works detailed in the notice had been re-designed to take them outside the scope of the Act. Technically I think it is the neighbour who is initially liable to pay the surveyors fee if you have not signed an instruction but the neighbour can recover the costs incurred from you and the surveyor is likely to be involved in this further adding to the fees. You really shouldn't have served the notice until you had spoken to the neighbour to gauge their likely response.
Now the amount this surveyor is charging is totally ridiculous so we can probably assume the surveyor is one of the unscrupulous band of crooks who abuse the Party Wall Act to line their own pockets. There are a few out there that charge up to £300/hr and will not hesitate to take legal action to recover their fee plus adding further costs. I would suggest you get some expert advice before you find yourself in an expensive legal fight.
Just read OP's last post, if the surveyor is a friend of the neighbour then maybe he is just a chancer and not one of the sharks that make a living from this sort of scam. Does the surveyor have any professional qualification? That can help if they are behaving in an unprofessional manner?
As soon as you served the notice you invoked the Party Wall Act. Whether they formally dissented or did not reply within 14 days you were in dispute and the fees start. Accordingly the AO's surveyor is entitled to be paid for the work done to date until such time as it was agreed the works detailed in the notice had been re-designed to take them outside the scope of the Act. Technically I think it is the neighbour who is initially liable to pay the surveyors fee if you have not signed an instruction but the neighbour can recover the costs incurred from you and the surveyor is likely to be involved in this further adding to the fees. You really shouldn't have served the notice until you had spoken to the neighbour to gauge their likely response.
Now the amount this surveyor is charging is totally ridiculous so we can probably assume the surveyor is one of the unscrupulous band of crooks who abuse the Party Wall Act to line their own pockets. There are a few out there that charge up to £300/hr and will not hesitate to take legal action to recover their fee plus adding further costs. I would suggest you get some expert advice before you find yourself in an expensive legal fight.
Just read OP's last post, if the surveyor is a friend of the neighbour then maybe he is just a chancer and not one of the sharks that make a living from this sort of scam. Does the surveyor have any professional qualification? That can help if they are behaving in an unprofessional manner?
You will find that as you have not appointed this surveyor, you have no contract with him. He certainly is not a joint surveyor, so he will need to claim his fees from the neighbour (his client) who appointed him and then they could try and claim them back from you. ON what basis, I dont know as the Act is no longer being used.
What you need to do is refer to you cancelling the PW Notice and "withdrawing the Notice". So on that 11th day when your husband went around to the neighbours, you need to take the line that you "withdrew the Notice" at that time once the neighbour made his intentions clear. Verbally is OK. Your husband then confirmed the "withdrawal of the Notice" the next very day directly to the neighbours surveyor. You will note that as this was the folowing day, you will expect that the surveyor could not have done any work at all "in pursuance of the Act" as you had not passed the 14 deadline for the dispute to exist and surveyors to become involved, and thus no fees should be claimed in any case.
What you need to do is refer to you cancelling the PW Notice and "withdrawing the Notice". So on that 11th day when your husband went around to the neighbours, you need to take the line that you "withdrew the Notice" at that time once the neighbour made his intentions clear. Verbally is OK. Your husband then confirmed the "withdrawal of the Notice" the next very day directly to the neighbours surveyor. You will note that as this was the folowing day, you will expect that the surveyor could not have done any work at all "in pursuance of the Act" as you had not passed the 14 deadline for the dispute to exist and surveyors to become involved, and thus no fees should be claimed in any case.
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Except the AO surveyor did no work and was explicitly instructed to do no work because it had been redesigned and the structural engineer was checking calculations. From the first conversation my husband stated that a raft foundation would be used and no pwa would apply. There is no obligation to share calculations and we only did so following threat of injunction to make it crystal clear they had no grounds to serve an injunction and could not delay us in terms of time. When the 14 days lapsed our neighbours expected a letter confirming descent, which we never provided and informed them straight away that we would no longer be pursuing pwa.
According to the surveyor's website he is a certified member of the Royal Institute of Chartered surveyors, and claims to be involved with training for RICS. My husband is in a few weeks undertaking his final verbal exam to complete his part 3 of his architecture course and become a certified RIBA architect. And he's gobsmacked the RICS don't train surveyors to quote for jobs properly (detailed breakdown of costs) and supply a contract agreeing to the terms. His understanding was that the surveyor cannot commence work until we agree fees and when to start work. Because although we can serve the notice any number of reasons could change our circumstances that we no longer decide to proceed with doing any works. How can the party wall act just enable surveyors to charge what they like when no one has agreed that their services are required? It doesn't specify anywhere that a follow up letter is required state that the original letter is no longer applicable, however surely verbal confirmation is sufficient. And an email from our engineer confirming PWA was no longer applicable. And surely opening ended costing should be illegal.
We took out a separate self-build insurance policy which says it covers PWA matters, so hopefully this be covered under that. Otherwise I guess we would need to work out whether it would be better to utilise legal services from my union (USDAW - free initial advice and then 'special' rates for action) or home insurance (presumably cover all costs but put the premium up). Hopefully advice from usdaw would be enough of a detterent.
According to the surveyor's website he is a certified member of the Royal Institute of Chartered surveyors, and claims to be involved with training for RICS. My husband is in a few weeks undertaking his final verbal exam to complete his part 3 of his architecture course and become a certified RIBA architect. And he's gobsmacked the RICS don't train surveyors to quote for jobs properly (detailed breakdown of costs) and supply a contract agreeing to the terms. His understanding was that the surveyor cannot commence work until we agree fees and when to start work. Because although we can serve the notice any number of reasons could change our circumstances that we no longer decide to proceed with doing any works. How can the party wall act just enable surveyors to charge what they like when no one has agreed that their services are required? It doesn't specify anywhere that a follow up letter is required state that the original letter is no longer applicable, however surely verbal confirmation is sufficient. And an email from our engineer confirming PWA was no longer applicable. And surely opening ended costing should be illegal.
We took out a separate self-build insurance policy which says it covers PWA matters, so hopefully this be covered under that. Otherwise I guess we would need to work out whether it would be better to utilise legal services from my union (USDAW - free initial advice and then 'special' rates for action) or home insurance (presumably cover all costs but put the premium up). Hopefully advice from usdaw would be enough of a detterent.
The trouble is the OP started the ball rolling by serving notice and then allowing it to go to dispute. Rookey mistake 1
The OP then engaged with the surveyor by phone and email and arranged for the engineer to send a copy of the foundation details. Rookey mistake 2
Once you are in dispute the full force of the Party Wall Act comes in to play, as such I do not think it is essential for the Building Owner to enter in to a written contract with the surveyor, he is appointed by the adjoining owner and the Act allows for the surveyors "reasonable" fee to be recovered from the BO, rather like the losing party in a legal case having to pay the other sides legal fees even though they do not have a contract with the other sides legal team. It is a quasi judicial process so the usual rules of contract do not apply. However, the upside is that with this quasi judicial role comes huge responsibilities, the surveyor must behave in an impartial and professional manner, if it can be shown that he is acting beyond the responsibilities of his role and is favouring the adjoining owner he will be in trouble.
I hope I am wrong but I have got a nasty feeling the OP will be liable for the surveyors (reasonable) fees for the abortive work they undertook between serving notice and effectively concluding the dispute by re-designing the foundations. Whether 3 hours at £150/hour is reasonable is a whole different argument, I cannot fathom what they managed to spend 3 hours doing, 1 hour would seem more than enough.
The OP then engaged with the surveyor by phone and email and arranged for the engineer to send a copy of the foundation details. Rookey mistake 2
Once you are in dispute the full force of the Party Wall Act comes in to play, as such I do not think it is essential for the Building Owner to enter in to a written contract with the surveyor, he is appointed by the adjoining owner and the Act allows for the surveyors "reasonable" fee to be recovered from the BO, rather like the losing party in a legal case having to pay the other sides legal fees even though they do not have a contract with the other sides legal team. It is a quasi judicial process so the usual rules of contract do not apply. However, the upside is that with this quasi judicial role comes huge responsibilities, the surveyor must behave in an impartial and professional manner, if it can be shown that he is acting beyond the responsibilities of his role and is favouring the adjoining owner he will be in trouble.
I hope I am wrong but I have got a nasty feeling the OP will be liable for the surveyors (reasonable) fees for the abortive work they undertook between serving notice and effectively concluding the dispute by re-designing the foundations. Whether 3 hours at £150/hour is reasonable is a whole different argument, I cannot fathom what they managed to spend 3 hours doing, 1 hour would seem more than enough.
No, the husband went around on the 11th day and confirmed notice withdrawal on the 12th day direct with the client's surveyor. It did not go to dispute.
Can you verbally withdraw a legal notice?
In OP's first post they said..."Anyway on the 16th day (following our initial letter) they come to our house and hand us a letter stating they appointed a surveyor backdated to the 14th day. I advise them that we no longer plan to pursue that route, he says we have to, but I said we don't. The following day my husband contacts their surveyor to inform them that their services are not required because we are changing the design of the foundations and provided the contact information for our structural engineer."
By my reckoning this is the 17th day and no mention of notice being withdrawn and why provide contact details for the engineer unless they were expecting them to contact the engineer. I bet the surveyor was thinking...kerching!
Read the OP again regarding the dates.
There is no requirement for a withdrawal to be in writing.
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My understanding (limited) is that a neighbour can appoint a party wall surveyor only with the agreement of the builder - so if they did not have this discussion, they broke the rules. Without that rule in place, they could appoint somebody that charges £10000 and take a commission.
"You must appoint a surveyor if you and your neighbour can’t agree. You can appoint a surveyor together or each appoint your own." https://www.gov.uk/party-walls-building-works/if-you-cant-agree
So, if they appointed that surveyor on their own, then they must pay him.
I'd quote that line from Gov site to the surveyor and just say, they appointed you with discussing it with me, so you are working only for them. But remind him that there is no party wall issue to create an award for anyway, so he'll be wasting his time.
But don't hold me to account if it all goes pear shaped!
.... edit...
mind you, it does say here: " Surveyors costs will almost always be borne by the party who starts the work." ....
but then, when do you plan to start the work..... ?
Neighbours can be assholes. I had to do a party wall award - my neighbour spent 6 weeks saying they would sign the agreement, and specifically said not to appoint a surveyor after 2 weeks, and said they didn't want to delay building, and said they'd had no problem at all with it, but still did not sign. Then I appointed a surveyor myself, told them they'd have to work with said surveyor if they don't want it to go through the courts, and the popped the original form through the door (6 weeks late) and said they didn't appreciate me threatening legal action.
I did the work, then moved house.
Building starts in about 2 weeks. No party wall needed this time.
"You must appoint a surveyor if you and your neighbour can’t agree. You can appoint a surveyor together or each appoint your own." https://www.gov.uk/party-walls-building-works/if-you-cant-agree
So, if they appointed that surveyor on their own, then they must pay him.
I'd quote that line from Gov site to the surveyor and just say, they appointed you with discussing it with me, so you are working only for them. But remind him that there is no party wall issue to create an award for anyway, so he'll be wasting his time.
But don't hold me to account if it all goes pear shaped!
.... edit...
mind you, it does say here: " Surveyors costs will almost always be borne by the party who starts the work." ....
but then, when do you plan to start the work..... ?
Neighbours can be assholes. I had to do a party wall award - my neighbour spent 6 weeks saying they would sign the agreement, and specifically said not to appoint a surveyor after 2 weeks, and said they didn't want to delay building, and said they'd had no problem at all with it, but still did not sign. Then I appointed a surveyor myself, told them they'd have to work with said surveyor if they don't want it to go through the courts, and the popped the original form through the door (6 weeks late) and said they didn't appreciate me threatening legal action.
I did the work, then moved house.
Building starts in about 2 weeks. No party wall needed this time.
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That's broadly correct, so the OP can hold you to account.
Sorry I'm confused what OP stands for? In one context it seems to imply "original post" in the last reply "OP can hold you to account" implies other party???
Regarding dates my husband went round on 11th day to see if they would be reasonable and when they weren't he redesigned straight away. Unfortunately he did not inform them that the PWA was no longer valid because he wanted to double check that he could do raft foundations. By 16th day when they came round I informed them a party wall award and surveyor would no longer be required.
Following a discussion with members of the faculty of party wall surveyors...they believe the surveyors should not have invoiced and has nothing to invoice for. We informed the neighbours as soon as they handed us the (backdated letter) that no appointment was required because the party wall act is no longer required, and to further confirm it the following day with the surveyors means there was never a need for them to do work. If our neighbours wracked up their time and appointed them to serve an injunction it is our neighbours that owe them. They said they would have written off the 15 minutes spent on emails and they can't understand how they can claim 3 hours work to us.
We never appointed our own surveyor. We ignored their emails chasing asking for the design (because they had no right to it) until threatened with injunction.
Invalidating the PWA seems to precede their right to be appointed. And consumer rights to 14 day cancellation also stands. I've sent an email. I don't believe there is anything they can come back on but if they do it will no doubt be through a solicitor. My husband has passed it over to me to spend the time trying to save us the £540 we're being charged.
Fingers crossed, and I'll be making use of free legal advice from my union.
Regarding dates my husband went round on 11th day to see if they would be reasonable and when they weren't he redesigned straight away. Unfortunately he did not inform them that the PWA was no longer valid because he wanted to double check that he could do raft foundations. By 16th day when they came round I informed them a party wall award and surveyor would no longer be required.
Following a discussion with members of the faculty of party wall surveyors...they believe the surveyors should not have invoiced and has nothing to invoice for. We informed the neighbours as soon as they handed us the (backdated letter) that no appointment was required because the party wall act is no longer required, and to further confirm it the following day with the surveyors means there was never a need for them to do work. If our neighbours wracked up their time and appointed them to serve an injunction it is our neighbours that owe them. They said they would have written off the 15 minutes spent on emails and they can't understand how they can claim 3 hours work to us.
We never appointed our own surveyor. We ignored their emails chasing asking for the design (because they had no right to it) until threatened with injunction.
Invalidating the PWA seems to precede their right to be appointed. And consumer rights to 14 day cancellation also stands. I've sent an email. I don't believe there is anything they can come back on but if they do it will no doubt be through a solicitor. My husband has passed it over to me to spend the time trying to save us the £540 we're being charged.
Fingers crossed, and I'll be making use of free legal advice from my union.