PWS Negligence

In a recent matter the building owners surveyor (BOS) prepared and served notice under s.1, s.6(1) and s.2.  The adjoining owner’s surveyor (AOS) was appointed and the two surveyors selected the third surveyor (TS).

 

The BOS and AOS then served an Award.  There were significant concerns throughout the construction process raised by the adjoining owner (AO) who was an elderly lady.  Those concerns were simply ignored.

 

These concerns related to building on her land, building onto her roof causing damage to her property.  All legitimate claims which the AOS ignored.  She went to a number of surveyors for independent advice.  The two surveyors that gave her advice after extracting several thousands of pounds in fees for something that would have taken 5 minutes by phone and did not advance the matter further or properly.  These surveyors who are well known within the party wall community failed to spot very basic errors of the BOS and AOS.

 

Dr Antino was instructed to provide a further opinion on the matter.

 

The first thing that Dr Antino does is to check the validity of the notices and then the appointment of the AOS and/or BOS and TS.

 

The notices under s.6(1) were valid.  The s.2(2) notice was invalid because it simply did not include any of the 13 sub sections, so it was not clear what was intended, and the AOS did not challenge this!!!

 

The s.1 notice related to building a new wall on the line of junction was also invalid because there were no works relating to a new wall on the line of junction.

 

Furthermore, the s.1 notice was a pre-formatted type and had the s.1(6) and reference to special foundations crossed out.

 

Having been satisfied that some of the notices were invalid Dr Antino then looked at the Award.

 

The two surveyors awarded works under s.1(6) which of course had been crossed out on the notice.  No notice no power to award.

 

Dr Antino then considered the s.2 works which had not specified (I suspect on purpose) any of the various sub sections.  The structural engineers drawings showed that there was a new foundation beneath the party wall to carry the additional loads for the vertical extension above the roof.  The structural engineers calculations showed a reinforced foundation under the full width of the party wall.  That is a special foundation under s.7(4).  That had also been crossed out on the s.1 notice.

 

In the Award the special foundations were allowed.  Neither the BOS nor the AOS had discussed special foundations and/or obtained written consent from the AO for the placing of special foundations on her land.  This is negligence.

 

A party fence wall was demolished, and the new flank wall of the rear extension was proposed in the same position as the previous party fence wall with one significant difference.  The extension went beyond the original length of the party fence wall (not allowable) and permission was not sought.

 

Whilst there is provision within s.2(2)(l) to demolish and raise the party fence wall as a party wall, that does not entitle a BO to go beyond the length of the existing party fence wall length.  This is not allowed and is a new wall astride the boundary that is a trespass.

 

Neither of these two surveyors had considered any of the drawings!!!  Now whether that is because they are ignorant of the Act in which case negligent or whether they were working together for whatever nefarious reasons is not clear but in any even they awarded works that could not be awarded and that is negligence.

 

Prior to Dr Antino’s appointment the AO had approached the TS.

 

That was a referral under s.10(11) and the AO was entitled to have the TS investigate this properly and correctly.  The TS (albeit in his later years), and way beyond the age of the retirement, chose to adopt a different strategy.  He simply phoned the AOS and said, “I have been contacted by the AO and asked the AO what the problem was”.

 

The AOS advised the TS that “there were no problems and that the AO did not know what she was talking about”.

 

The TS then wrote back to the AO and said, “there is nothing for me to get involved in if you have an issue you have to go through this via common law”.  Disgraceful advice.

 

The TS was negligent, because there were issues, first of all there was the cracking and damage to the plaster surfaces and decorative finishes on the inside face of the party wall, which the AOS did not mention.

 

If the TS had done his job properly and carried out an analytical assessment of what these two surveyors had done from the very beginning i.e., service of notice etc., he should have (but I suspect he would not) identified the invalid notices and should have come to the same conclusion that I had.

 

The TS should have noted the special foundation issues, he did not.

 

The Party Wall Act is there to protect the AO from BO who do something they are not legally entitled to.

 

The level of service and duty of care that is owed to an AO through both the BOS, AOS and TS is to the appropriate test being “the ordinarily competent surveyor”.

 

No AO should ever be left in a situation where the two surveyors clearly aided and abetted by the TS had been negligent.

 

It is regrettable to say that the TS is a very well-known party wall surveyor.  The other two surveyors were not previously known to Dr Antino but nonetheless they are members of the RICS www.rics.org , Faculty of Party Wall Surveyors www.fpws.org.uk and one of them is also a member of the P&T Club www.pyramusandthisbesociety.org.

 

Given that the RICS, FPWS and P&T purports to promote good practice it is astonishing that this TS who has been embedded within the faculty failed to do anything remotely correctly.

 

This really should not be happening, but sadly it does all too often.