A CRITIQUE OF THE RICS STANDARD FORM DRAFT AWARD
Party Wall surveyors, like most other professionals, use standard form precedents or templates for commonly produced documents, thereby saving themselves (and occasionally even their clients) time and money. Members will be aware that the writer has spoken (and written) previously about the dangers of over-reliance on such standard forms generally. This article, however, deals with particular issues or problems arising from what is understood to be the most commonly-used standard form of draft award, namely that produced by the RICS in the sixth edition of their guidance note on Party wall legislation and procedure, at appendix D (“the Award”). Some of the issues discussed below are more fundamental than others, but hopefully all are of interest, and will give rise to constructive discussion and a more considered use of such standard forms. Apologies in advance to those who are responsible for the drafting of the standard form – it is far easier to criticise than to create, and this article has been written from a hyper-critical viewpoint.
Critique of the Award
Substitute Third Surveyor
The Award states:
“In the event of the third surveyor being unable or unwilling to act and their being unable jointly to agree upon a substitute, another third surveyor shall be appointed by the appointing officer of the relevant local authority in accordance with section 10(8) of the above Act.”
While this is plainly intended to deal with the selection of a replacement third surveyor - see sections 10(8) and 10(9) of the Act – it is equally plainly not in accordance with the Act.
First, the circumstances in which a substitute third surveyor must be selected are not simply where he is “unable or unwilling to act”. The circumstances are those set out in section 10(9), i.e. where the first-selected third surveyor (1) refuses to act, (2) neglects to act for ten days after a valid request, or (3) dies or becomes or deems himself incapable of acting. While it might be said that “unable or unwilling to act” is simply a brief summary of those circumstances, such a summary does not really work without a reference to the relevant subsection at least.
Secondly, the Award purports to give the appointing officer the power to “appoint” a substitute third surveyor, where section 10(9) only ever gives the appointing officer the power to “select” a substitute.
Thirdly, and most importantly, the Award purports to give the appointing officer the power to appoint a substitute third surveyor where the two surveyors “are unable to jointly agree upon a substitute”. The Act only gives the appointing officer jurisdiction to select a substitute where either (1) one of the party’s surveyors has refused to select one, or (2) where one of the party’s surveyors has neglected to select one more than ten days after a request to do so by the other party’s surveyor, i.e. in the circumstances set out in section 10(8). While a failure by the parties’ surveyors to agree who to select may be a precursor to the circumstances giving rise to the jurisdiction of the appointing officer to select a substitute, that inability to agree does not itself give rise to the jurisdiction.
Makers of the award
The very next paragraph of the Award starts:
“It is a requirement of the Act that the three surveyors or any two of them, or in the event of no two of them being in agreement the third surveyor, shall settle by award all or any matter which is connected with any work to which the Act relates and which is in dispute between the building owner and the adjoining owner…”
The Award is based on the premise that a three surveyor tribunal has been appointed/selected pursuant to section 10(1)(b). However, this clause is misleading in that the word “requirement” suggests that it sets out exhaustively the ways in which an award can be made under section 10 in the event of a dispute. Not mentioned, and potentially of great significance is the power of a single surveyor to make an award under section 10(6) or 10(7).
The Award also provides:
“Any agreement or acceptance made by either surveyor in this award or subsequently during works on site shall not be taken to imply any responsibility by them or their appointed technical delegates for any structural or any other insufficiency in any part of the works whether existing or executed”
This clause is obviously intended to limit or exclude liability on the part of the surveyors making the award, in particular in relation to any “structural or any other insufficiency”. Given that, certainly from the adjoining owner’s perspective, ensuring the sufficiency of the works, structurally and otherwise, might properly be considered to be the surveyors’ primary task, it is difficult to see what the legal justification for this attempted exclusion is. The word “attempted” is used advisedly, because a court is unlikely to be impressed by a unilateral attempt on the part of the tribunal of surveyors to avoid liability for a duty they almost certainly owe to the parties.
In normal circumstances an exclusion clause is a matter of contract, i.e. an agreement between parties limiting the liability of one party to the other. While courts are prepared to give effect to such clauses, they are always construed strictly. In party wall matters, while an appointing owner may have signed a client care letter giving rise to a contract between himself and his appointed surveyor, and which may contain an exclusion clause, this will certainly not bind the other party to the section 10 dispute.
There are therefore two reasons why party wall surveyors should think twice about incorporating such a clause into their awards: (1) because it is likely to prove unenforceable, and (2) because attempting to avoid responsibility for the matters in respect of which one’s professional expertise is being sought is unattractive to say the least.
Determination of wall or structure as “party”
After the recitals, the Award goes on to deal with the party wall or structure which is the subject of the dispute as follows:
“1. <delete as appropriate>
*(a) That the <insert ‘wall’ or ‘structure’> separating the two properties is a <insert ‘party wall’, ‘party fence wall’ or ‘party structure’> within the meaning of the Act.
*(a) That the adjoining owner’s property is an independent building standing close to or adjoining the building owner’s property, within the meaning of the Act.”
While it might be said that there is some advantage to an award setting out what the surveyors’ understanding of the existence and type of party wall involved is, there is no jurisdiction for them to determine boundary disputes, which is the primary situation in which, for example, the question of whether a wall is a party wall or an independent building is likely to arise. It would therefore be more preferable for this part of the paragraph (which is effectively a recital) to say, “The surveyors understand that…” rather than purport to award in respect of something over which they have no jurisdiction.
Significance of attached drawings
The final part of paragraph 1 of the body of the Award provides:
“(d) That the drawing(s) numbered <insert all drawing numbers> and attached hereto form part of this award.”
Quite apart from the fact that this provision is otiose – drawings can be incorporated into an award by physically being attached, or by reference – the provision does not serve any useful purpose in this paragraph. Drawings commonly include far more comprehensive detail of the notifiable works than the summary narrative contained in the award. The main reason for incorporating them would therefore appear to be to provide a more accurate definition of the works authorised by the award. However, in order to do so, the reference to the drawings ought to appear in paragraph 2 (which does describe the authorised works) and with a suitable reference such as “… which are set out in more detail in the drawings attached hereto at appendix…”, rather than in paragraph 1, where the current sentence has no effect at all.
Completion and cost of works
Paragraph 4(a) of the Award provides that the building owner shall, if he commences the works:
“Execute the whole of the works and do so at the sole cost of the building owner.”
There are two potential problems here. First, it is difficult to see how the surveyors have jurisdiction to award that the works should be completed, which is the primary meaning of “Execute the whole of the works”. Where there are various different phases or stages to works which are independent of each other, the surveyors cannot possibly have jurisdiction to insist that if stage one is commenced (a basement excavation for example), stage two (alterations to internal walls) and stage three (a roof extension) must also be carried out. Of course, it may well be appropriate for an award to be made requiring that any particular phase, if commenced, must be completed – thus if a basement excavation and underpinning exercise is commenced, there are obviously sound reasons for it being completed; indeed it might well be appropriate for time constraints to be imposed on the completion of such work. The provision, currently in clause 7 of the Award, that works should be carried out with “reasonable expedition” should, however, suffice in most cases.
Secondly, there will of course be circumstances where adjoining owners will be required to contribute to or even pay for the cost of works carried out – for example, where a party fence wall serving as a retaining wall has failed because of being surcharged by a new building on the adjoining owner’s land. Where there is a situation in which there is a possibility or likelihood that the adjoining owner will at least have to contribute to the cost of the works, it would be prudent to add a proviso along the lines of “save as may otherwise be awarded by the surveyors or provided by the Act”.
Paragraph 4(b) of the Award provides that the building owner shall:
“Take all reasonable precautions and provide all necessary support to retain the land and buildings comprised within the adjoining owner’s property.”
This clause appears to be an attempt to meet the demands of section 7(3), but falls short. The requirements of section 7(3) are not for “reasonable” precautions, but relate to specified precautions being made and maintained if and for so long as they are “necessary”. Further, the current clause in the Award relates only to support, but section 7(3) also addresses protection and security.
To the extent that the clause is intended to reflect the requirements of section 7(3), it is inadequate and would be better to either say “comply with the requirements of section 7(3)” or, if it is considered appropriate to spell it out “at his own expense make and maintain so long as may be necessary a proper hoarding, shoring or fans or temporary construction for the protection of the adjoining land or building and the security of any adjoining occupier”.
Paragraph 4(d) of the Award requires the building owner to:
“Make good all structural or decorative damage to the adjoining owner’s property occasioned by the works in materials to match the existing fabric and finishes, to the reasonable satisfaction of the two surveyors, with such making good to be executed upon completion of the works, or at any earlier time deemed appropriate by the two surveyors. If so required by the adjoining owner, make payment in lieu of carrying out the work to make the damage good, with such sum to be agreed between the owners or determined by the surveyors.”
The only part of the Act which requires the building owner to “make good” is sections 2(3) to 2(6), which apply only where the building owner has carried out works under section 2(2)(a), (e), (f), (g), (h), (j) or (m). It is far from clear that the surveyors have the jurisdiction to require the building owner to make good any damage not consequent upon such works – that jurisdiction is probably limited to the power to award compensation under section 7(2). This paragraph ought therefore to be limited in effect explicitly to the making good required by sections 2(3) to (6), and given that this would simply be repeating what the Act provides in any event, it might well be better to delete the paragraph entirely. This final point applies also to paragraph 4(e) of the Award which merely recites the requirement to compensate under section 7(2). As is noted in relation to further provisions of the Award below, there is little utility in simply parroting provisions of the Act in an award.
Paragraph 4(f) of the Award requires the building owner to:
“Permit the adjoining owner’s surveyor to have access to the relevant parts of the building owner’s property at all reasonable times during, and to inspect, the progress of the works.”
It will be noted that this goes beyond the right of access granted to the adjoining owner’s surveyor under section 8, because it does not carry with it section 8’s requirement for notice to be given. It must therefore be open to question whether the surveyors have the power to make such an award. Perhaps the best argument which can be put forward to justify this (eminently practical) provision is that this is an award dealing with the manner in which the works are to be carried out, i.e. at least potentially under the watchful eye of the adjoining owner’s surveyor.
Removal of scaffolding/screens
Paragraph 4(i) of the Award requires the building owner to:
“Remove any scaffolding or screens from the adjoining owner’s property and land as soon as possible.”
Only a small point here. It is “possible” to remove scaffolding or screens the moment that they have been erected; a more sensible approach would be to require that the scaffolding or screens be removed as soon as practicable after completion of the relevant works in respect of which they are in place.
Access and compliance with statutory requirements
Paragraph 5 of the Award requires access to be given by the adjoining owner to the building owner’s surveyor on notice. The first part of paragraph 6 requires the building owner to comply with statutory requirements and local bye-laws. On the face of it both of these paragraphs are otiose because they merely repeat the provisions of the Act, namely section 8(5) and (6), and section 7(5). The only justification for their inclusion would therefore appear to be in order to provide that information to the appointing owners – arguably that might be better done by simply giving them a copy of the Act. An identical comment also applies to the requirement to “avoid unnecessary inconvenience” in paragraph 7 of the Award.
Provision of Plans
Paragraph 9 of the Award provides:
“That the building owner shall upon completion of the works provide to the adjoining owner a set of the ‘as built’ drawings of the works insofar as they may be different from the drawings forming part of this award, at the sole cost of the building owner.”
The reference in the accompanying note makes it clear that this only applies to works carried out under section 6. It would therefore seem to be intended to reflect the requirements of section 6(9) of the Act. However, it does not accurately reflect those requirements, which are to provide “particulars including plans and sections of the work” (i.e. more than simply “as built” drawings), and relate to an obligation which only arises “if so requested by the adjoining owner”. It might therefore be better to simply omit this paragraph, and leave section 6(9) to speak for itself.
Fees for subsequent visits/inspections
Part of paragraph 10 of the Award provides:
“That the building owner shall immediately on the service of this award pay the adjoining owner’s costs by way of their surveyor’s fees in the sum of £<insert net figure> plus VAT (£<insert gross figure>) in connection with the obtaining and making of this award, and <insert number of agreed site visits> subsequent inspection(s) of the works.”
Although there can be no objection to an award dealing with fees incurred down to the date of the award, it is arguably wrong to make provision for the payment now of fees which have not been incurred at the date of the award, and may never be incurred. It is suggested that it will normally only be appropriate to make an award of fees in relation to future inspections where the surveyors are confident that such inspections are both necessary, and will actually take place.
The Award makes provision not only for the award to be signed by the surveyors making it, but for their signatures to be witnessed. Given that the Act does not even require an award to be signed, such a formal execution of an award is rather over-zealous. The sole purpose of signing an award is to provide evidence that it is in its final form. The surveyors’ (unwitnessed) signatures are more than adequate for this purpose, and, in this digital age, where a document can be saved in a pdf format which is more than adequate to evidence the date, time and form of a document, it is arguable that even signatures are unnecessary.
It is always dangerous to rely unduly on standard forms. Much of what appears in the Award could be pruned away without in any way diminishing the effectiveness of the award. Indeed, the fewer the standard terms appearing in an award, the easier it will be to see what the real substance of that award is. When making awards based on the Award (or any standard form) think carefully about whether each paragraph or clause is actually needed, and whether it actually says what you need it to say.