Have we made a monster?

Citation

Anstey, J. (1998), "Have we made a monster?", Structural Survey, Vol. 16 No. 1. https://doi.org/10.1108/ss.1998.11016aaa.002

Have we made a monster?

Have we made a monster?

John Anstey

In the increasingly illiterate age in which we live, I am almost tempted to begin this article, or even entitle it, "Have we made a Frankenstein?" When even George Steiner, the epitome of literacy, can misquote or rather misunderstand a quotation from Shakespeare (He used "more honoured in the breach than in the observance" to mean "more often broken than observed", whereas it means "it is more honourable to break it than to observe it"), how many of my readers would know that it was Frankenstein who created the monster? Perhaps I should begin: "Am I a Frankenstein?"

By the way, many years ago my father used to write a regular column in the Stock Exchange Gazette on investment in property. Eighty per cent of it used to be ramblings (very readable ramblings) on subjects of general interest ­ I remember one in particular on a production of Shaw's St Joan at my school ­ and the last 20 per cent on investment. Every time a new editor was appointed he would insist on a higher investment content, and less of the ­ as he saw it ­ waffle. My father would agree, but with each successive article the balance would tilt, until he was back to 80:20. I am happy to tell you that no editor of Structural Survey has ever attempted to curb my discursive style but on the other hand, I think that my excursions rarely exceed 20 per cent.

However: what is this monster? Well I hope that it is not the Party Wall etc. Act, 1996. When we drafted the Act, we were very conscious of the fact that small works might find the fees becoming disproportionately large, and we agonised (the word is not too strong) over a method of excluding minor repairs or extensions. We could not think of any watertight method by which works which really were small could be excluded, without some wily blighter carrying out the small works without notice, and then proceeding to the larger works which would no longer involve the Act. The same was true of price limits: all the w.b. had to do was proceed in stages.

I was telephoned last week by a chap whose neighbour would not let him put in a flashing without going through all the procedures of the Act. I pointed out to him that without the Act he would have no right to insert a flashing at all, but that the Act allowed for agreement between the owners: you do not have to have surveyors and an award. I suggested that he should explain this to his neighbour, and hope that he would then consent. If he did not, then my enquirer should concur in the appointment of the neighbour's surveyor. Even the most incompetent and client-regarding surveyor could hardly make a meal ­ or a dog's breakfast ­ out of a flashing.

Which brings me to my next subject: incompetence. While it is not reasonable to expect instant familiarity with all the ramifications of the Act by those who have never known the London Building Acts, a basic ability to read should surely be a minimum requirement of those accepting appointment as surveyors. Alas, this does not seem to be the case. Some extraordinary notices have been received, and a simple reading of the Act or even of the draft form of notice could not have failed to lead the signatory towards a better attempt. One recently received by one of my partners named the Third Surveyor on the notice. "Oh", said the engineer who had filled it in, "I thought the Act said that you had to do that. There was much more in the same vein, and finally my partner persuaded him to start again. Reluctantly he agreed, and last week, bearing the same date as the abortive attempt, there appeared in our office a new notice ­ under the London Building Acts (Amendment) Act, 1939.

The above example is only the worst of a number of similar incidents, and the sad thing is that when you try to help these people they think that you are being obstructive. Since it is clear from the leading cases that if the initial notices are incorrect the whole of the party wall proceedings will be invalid, it is in the interests of the building owner and of his surveyor to get the notices right to start with. Any adjoining owner's surveyor who really wanted to be obstructive would wait till the final award was presented for signature, and then point out the defects in the notice. That is being difficult. In fact to point out defects at the outset is the most helpful thing that the adjoining owner's surveyor can do.

There can be no regular reader of Structural Survey who is unaware of The Pyramus and Thisbe Club, but for the first-timer I should explain that it was founded in 1974 as a group of 46 surveyors interested in party wall matters. For over 20 years they were confined to London, but the passing of the 1996 Act has led to applications for membership from all over England and Wales, so that there are now nearly 300 members, and numbers are growing all the time.

It should be emphasised that we are not a regulatory body, we do not set exams, and we do not expel people for misconduct: only if they fail to renew their subscription which is in the paltry sum of £20 for two years. All that we demand of our members is an interest in the subject and a willingness to share news of any important cases with the rest of the Club, especially cases that they may have been personally involved in. Occasionally we get applications for membership from people who are known to members of the Committee as being less than ideally competent, but our attitude is that it is better to have them in the Club and educate them than leave them in ignorance outside. But at least if owners appoint someone from the Club as their surveyor they can be sure that their appointee has access to a great body of informed and competent advice.

What then are we to make of the National Register of Party Wall Surveyors? Several members of the P&T have received forms inviting them to apply to be put on such a register, which will be published to likely owners. (Is it chance or deliberate that some of the most prominent and best known party wall surveyors have not received the forms?) Simply to be put on the register costs more than three times the P&T Club's annual subscription, but will this organisation hold meetings with distinguished speakers, or issue learned papers? Will it really be published to those who are likely to need surveyors? Will they read it if they get it? Is the whole thing like these fax directories for which one gets touting letters? I am not saying it is, because I know no more than the application form (sent to me by another P&T member: one has not been sent direct to me or my firm) tells me.

One thing which the promoters of the Act were absolutely sure about was that it did not need the involvement of lawyers and the courts, which has made The Access to Neighbouring Land Act such a broken reed. That will not stop lawyers trying to get their toe in the door, of course, and one best friend barrister is trying to set up a Lawyers in Party Walls Group, and has invited one of my best friend solicitors to speak at the inaugural meeting. He has also made the mistake of inviting me, so I shall certainly go along and warn them off.

Talking of touting, which I was two paragraphs ago, I regret to say that the passing of The Party Wall etc. Act has led to the kind of ambulance chasing which used to be ­ probably still is ­ indulged in by unscrupulous persons in pursuit of business. I have had shown to me several letters, one of them I regret to say from a member of the P&T, which have obviously resulted from a study of planning applications, and which point out to an adjoining owner that the permission applied for concerns work which will involve party wall procedures. The recipient is frequently assured that he has to appoint a surveyor ­ not true ­ and that the Act says that his surveyor's fees will be paid by the building owner ­ not true ­ and that he would be well advised to appoint the writer of the letter ­ almost certainly not true.

Nowadays, I am in the happy position where reputation brings me and, I am pleased to say, my partners as much work as we are able to handle, but I have never touted for work, and never will. I am always inclined to ask myself, when I receive such a letter in any connection, whether the sort of person who has to go looking for work is the sort of person whom I want to employ. Build a better mousetrap and the world will beat a path to your door ­ by word of mouth alone. And incidentally, if you have built a better mousetrap, I am plagued with mice both at home and in the office, so let me know.

Now to solutions. The first and most important task is to educate surveyors and the public (and lawyers, if possible) to learn that the first possibility known to the Act is that of owners proceeding by agreement. If an adjoining owner consents, following receipt of a valid notice, there is no need for the appointment of surveyors. If a prospective building owner, that is to say someone who intends to carry out work under the Act, approaches an honest and competent adviser, the latter should try to find out and tell the owner whether he should go and see his neighbour with a hope of avoiding formalities. I spend quite a lot of time on the telephone trying to help building owners in this way. From the fact that very few of them come back to me, I hope that they have been successful.

The next idea envisaged by the Act is concurrence in an agreed surveyor, a single person who will sort out all the party wall problems dispassionately. It is very difficult to persuade an adjoining owner who receives a notice saying that the building owner intends to appoint Mr X as his surveyor, that Mr X would act impartially between himself and the building owner. Occasionally, when the name of the intended surveyor is known to the recipient he will concur in his appointment, but it does not happen as often as it should in relation to the number of jobs which could be dealt with in this way.

The solution suggested to the would-be flasher, mentioned earlier, that he should let the chap next door appoint his surveyor and then concur, can be usefully expanded upon. If the building owner or his architect/surveyor/builder informally tells the adjoining owner that his client will shortly be serving notice of intended works, and enquires whether he has a surveyor whom he is minded to appoint, there is much more hope that the building owner will recognize the advantage of an agreed surveyor and feel able to concur. I was recently telephoned by an architect in such circumstances: he told me that all three adjoining owners intended to appoint me, and wanted to know whether I would accept appointment from the building owner as well. Most certainly, I told him, and praised his owner for his sensible approach to the matter.

I know that I have said this before, but I must say it again. If we are going to create a climate in which owners are happy to concur in the appointment of agreed surveyors, not only must they be educated as to the possibility, but also surveyors must be educated as to the way to behave to produce such confidence in the owners. Surveyors (and I use the term to mean anyone appointed under the Act: engineers, architects, surveyors or even lawyers) must understand that they are not the agents of the owner who appoints them. Their client is the wall. If the appointing owner instructs them to be obstructive, they must ignore such directions. They are there to see that both parties' rights are equally respected, and to see that the wall is properly built, or the excavation or underpinning properly carried out, as the case may be. When party wall surveyors achieve a general reputation for acting like this, owners will be ready to concur in an agreed surveyor for small works.

The P&T does not publish a list of members: perhaps we should do so, but I think that we would have to register under the Data Protection Act. Perhaps we will have done so by the time these words appear. After all, our membership now extends pretty well throughout the country, and some branch clubs already exist while others are budding. From such a list owners would know that they were getting a surveyor who had at least expressed an interest in party wall matters and who had, as I have already said, access to the advice of his fellow members if he had any difficult matters, especially of law, to decide. At the moment of writing, I cannot tell you what the Committee of the P&T will decide, but I shall certainly propose to them at their next meeting that we should indeed publish a list of members, though without giving any guarantee as to their ability. After all, we have one solicitor member.

That last sentence is a joke, since the particular solicitor is genuinely interested, and would not intervene unnecessarily in party wall matters, but it is no joke ­ nor is it prejudiced lawyer bashing ­ to say that lawyers should keep out of party wall matters. The success of The London Building Acts was due to the fact that they were administered by surveyors; the failure of The Access to Neighbouring Land Act is due to the fact that it is heavily weighed down by legal and court procedures. Lawyers, especially solicitors, must be educated to say to anyone approaching them with a party wall notice: "You do not need me, you need a surveyor". Of course, if a building owner refuses to recognize his duty to serve a notice, or respect an award drawn up by his surveyor, lawyers are then necessary, and I shall be quicker than most to call them in. But not before they are really needed.

There. It need not be such a monster after all. Properly nurtured, our baby can grow into a much loved child, equally adored by building owners and adjoining owners, and even affectionately patted from time to time by lawyers.