STANDARD FORM AWARDS
Surveyors who are appointed as party wall surveyors under the Party Wall Etc. Act 1996 (“the Act”) are required to make an “award” under the Act in order to resolve whatever actual or deemed party wall dispute that may exist between building owner and adjoining owner. Although there is no prescribed form for such an award, a number of templates for such award have been produced, the most commonly used being that annexed to the 6th Edition of the RICS guidance note on Party wall legislation and procedure.
Such templates are designed to and do in fact save appointed surveyors a great deal of time, firstly by including provisions which are applicable and relevant to most party wall awards, and secondly by using wording which has been carefully formulated by experienced surveyors and lawyers, and which also has the benefit of established use. In effect, surveyors using a template can simply fill in the key sections individual to the dispute they are resolving, and a comprehensive and valid party wall award is the result. Or at least, that is the theory.
In practice, and in the experience of the author, surveyors need to be more careful in their use of templates in the production of awards. This extends not only to the makers of awards ensuring that only those elements of an award which are both applicable to and necessary for the resolution of the dispute in question to be included, but also to looking critically at the wording of the standard form templates themselves.
Although there is not space within this article to critique any of the standard form templates in details, it is possible to give some general pointers about using them:
(1) Only include what it is necessary to include – there is always a temptation when using a template, which invariably contains comprehensive provisions, to include all of those provisions. In fact it is far more sensible to adopt an “if in doubt, leave it out” approach to such provisions. Only if you can see what purpose a clause serves, and why it needs to be included in the award in question should you leave it in.
(2) Do not assume the template writers are correct – all templates are written by someone, whether an individual or a committee. By its nature a template is generic, attempting to cover a wide range of possible scenarios. Not only does this lead to a tendency to include provisions “just in case”, but it is easy to lose sight of the primary purpose of the award – the resolution of a specific dispute under section 10 of the Act. The RICS standard form template includes at least half a dozen provisions which are arguably wrong, unlawful or both. When using a template reassure yourself that everything included within it complies with the requirements of the Act.
(3) If you do not understand the purpose of a provision, leave it out – the RICS standard form template includes a recital dealing with whether the wall in question is a boundary wall or party wall or party structure or party fence wall. Why is it necessary to recite this or make a determination as to this point? It is rarely if ever necessary to make such a determination. If you cannot explain to someone why you need to include such a provision, do not include it.
(4) Make sure the words used do the job you want them to do – the RICS standard form award recites that attached drawings form part of the award. But simply reciting this does not imbue those drawings with any function. If you want to attach drawings to the award because they provide a detailed description of the works and how they are to be carried out, say so in the award.
(5) Rely on the Act rather than repeat it – many templates have a tendency to more or less (but not entirely accurately) quote from the Act. It is almost universal, for example, for awards to recite that the building owner will compensate the owner for any loss or damage caused by the awarded works. If the Act provides for an obligation anyway, there is no need to repeat that obligation in the award – if you feel the need to advise your appointing owner of this right/obligation, do so in a letter of advice, not in the award. And if you absolutely must repeat a provision of the Act in an award, quote it accurately.
Do not stop using templates, but please do not do so unthinkingly.