THIRD SURVEYOR
What happens if I disagree with what my surveyor is insisting upon?
It is taking too long — what can be done to break the deadlock?
When the parties (building owner and adjoining owner) appoint their respective surveyors under Section 10 (1) of the Act the two appointed surveyors must forthwith agree upon and select a Third Surveyor. The parties should be notified of this selection and if not should ask their surveyor for the name and contact details of the selected 3rd surveyor.
The third surveyor is then available to ‘arbitrate’ and referee in disputes that may arise between the parties, or their appointed surveyors, and has authority under Section 10(11) to determine matters in dispute and make an Award. This can bring about a resolution where the 2 surveyors fail to agree on a point or points.
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Disputes can arise, for example, over whether or not an advising engineer should be engaged at the expense of the building owner. For simple matters a competent surveyor should be able to manage with ease, and if not it has to asked whether they are in fact competent. For more complex, matters and especially basements, the advice of an advising engineer may well be reasonably required and a charging structure should be agreed in advance.
Where an adjoining owner appoints a surveyor under the Act it is usually in the knowledge that the building owner is to pay the fees i.e. the costs. The Act allows the surveyors to determine the level of costs, and such have to be reasonable in the circumstances. Reasonable can be difficult to define in such matters and so normal, usual, commonly seen comparators may be a factor. Time sheet records should be kept of course but the recording of time alone does not necessarily create a reasonable fee.
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There are times where access to carry out notifiable work is contentious and on occasions the third surveyor can re-assure the adjoining owner that what the surveyors have determined in their Award is lawful.
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Sections 12(1) and 11(11) can give rise to disputes between surveyors, but a reasonable approach often gives rise to an agreement.
The services of a third surveyor come with cost implications and often, but not always, costs will follow the event. (An award of costs will generally flow with the result of the determination i.e. the successful party often being fully or partially entitled to costs against the unsuccessful party). Some third surveyors insist upon a formal referral whilst others may try to assist informally at first. The 3rd surveyor, unlike the other surveyors, is entitled to expect payment before the Award is released/served.
Bruce Forrester is a well known third surveyor and has satisfactorily resolved many disputes without the need for solicitors, barristers and the Courts. However, some matters have had to be determined by the Courts and Bruce Forrester is able to advise as an Expert where required.