Surveyor returns fees and creates a dispute under the Party Wall etc. Act 1996
I was appointed by the BO and served s6(1) notice, 14 days passed no response Later that same day I recieved a call from a surveyor saying that he had been appointed by the AO and an email with his letter of appointment we agreed the selection of the TS over the next few days.
I received a call form the BO sadly advising that his wife had been diagnosed with cancer and for obvious reasons did not want to proceed.
I immediately told the AOS the situation which he accepted and advised that he had incurred fees and wanted paying.
I emailed him to confirm our conversation and stating that the BO was no longer proceeding. Given the unusual circumstances was somewhat shocked that he wanted paying. Nonetheless I invited him to submit his fees for my consideration. I received an immediate invoice by email stating that his fees were £363 inc vat for attending a preliminary site visit (before he was appointed), time recorded at 30 mins, writing to me advising that he had been appointed (the letter arrived three days later with his letter of appointment). He included a charge for the TS selection and also charged £100 for preparing his invoice. He also stated that if this was not agreed he would want to refer the matter to the TS
Now putting the emotional situation aside, and having considerable knowledge of this surveyor (who for the avoidance of doubt has not to my knowledge made any postings on this forum), I accepted that he had a right to be paid a reasonable fee. I contacted the Bo and gave him chapter and verse, I recommended that he pay the fee to avoid any further costs.
This is where it becomes interesting, The BO makes a bacs payment of £363.00 in full to the AO’s bank account (details on his invoice) within 48hours and sends a letter saying that he had paid the fee in full because of the potential cost implications, but considered his fee was unreasonable.
The AOS replies by letter to the BO enclosing a cheque for £363.oo inc vat (the BO never cashed the cheque) claiming that he was returning the payment and there was now a dispute over his fees and he was going to refer the matter to the TS and this would incur further fees.
The BO suggested that this was unreasonable and would make a complaint to the RICS.
But where is the dispute under the act, a fee has been incurred, requested and paid in full ? I hear you ask, I advised the BO not to cash the cheque, the matter went to a very experienced and knowledgeable TS.
Submissions were relatively simple and short , I as the BOS suggested that there was no dispute the fee had been paid in full, the BO was entitled to express his frustration. The AOS had returned the payment by cheque which had not been cashed and therefore the AOS was not financially disadvantage. He had asked and received exactly what he wanted.
The TS in his infinite wisdom awarded that there was a dispute and awarded his fees and additional fees of the AOS against the BO. Who now faced additional fees of £849.00 inc vat which is an increase of £486.00 inc vat plus the TS fees of £600.00 inc vat
Given the personal circumstances of the BO, the TS award has not been appealed, but the question I pose is
1) where was thew dispute?
2) is the award valid?
3) Were the AOS actions reasonable, professionally, morally and or inaccordance with the spirit of the act
4) Was the TS validly appointed