TERMS OF ENGAGEMENT

1.1 In addition to being a statutory appointment this appointment and these Terms together comprise a legal contract between us. Please read them carefully and let us know if you have any questions.

1.2 These Terms are subject to the 1996 Act. In the event of a conflict between these Terms and any provision of the 1996 Act, the provisions of the 1996 Act shall prevail.

1.3 We draw your attention to clause 5 below.

2.1 As a surveyor appointed under Section 10 the 1996 Act, their role is to safeguard the interests of the adjoining owner whilst enabling the building owner to exercise their statutory rights under the 1996 Act.

2.2 In performing this role, they are required to act independently and impartially. Although they will always listen to your concerns, they will not take instructions from you. Party wall surveyors are not employed by the parties but, pursuant to the statue, are appointed by them to perform the statutory function.

2.3 The statutory function is not in the provision of expert opinion upon the subsidiary subject matter of disputes to which we are not parties but in the making of the awards determining those disputes. Their role in considering in determining the nature of building owner’s proposal, it’s necessary compliance with the relevant sections of the party wall act.

2.4 They must use their own skill and judgement in determining any disputes or differences between you in respect of the proposed works.

2.5 Their role is to determine disputes and settle matters by the making of awards and it is essentially quasi-arbitral and is concerned with the resolution of disputes between the parties. Disputes can turn upon in a number of issues, my predominant role is to determine them and not to provide solutions to the disputed matters.

2.6 As for ‘approving and checking the quality of the work’, it must be understood that the party wall surveyor will make only those inspections necessary to ensure that the authorised work complies with the Act and the Award. Should the building owner’s work found to be defective or unauthorised, it is for the building owner himself, usually through his consultants, to rectify the situation. The party wall surveyor has no remit to issue instructions and is not a party to the dispute, although consequential disputed matters might be resolved by the making of an addendum award.

3.1 Surveyor’s fees are based on the time they will spend dealing with issues or disputes arising out of the proposed works. Their hourly rate is £150 per hour, which is charged in units of 5 minutes. Their invoices are payable within 7 Days of presentation.

3.2 Although an award may determine that one of you is required to reimburse some or all of their fees, you will remain jointly and severally responsible for any outstanding fees until they are paid.

3.3 If a dispute arises between the two appointed surveyors, the matter is referred to the selected Third Surveyor. If this happens, further fees may be charged by the Third Surveyor, at his rate of fee. You will be informed and consulted with in advance if this happens.

3.4 Hourly rate in ‘3.1’ will be charged when work has been carried out for any agreed amount but it has not been concluded.

3.5 Adjoining owner is not responsible for the fees of the surveyor(s), unless under certain circumstances of the Act. You will be informed of that in advance.

4.1 You agree to assist the surveyor in performing their role by: -

4.2 Ensuring that any documents you provide to them are complete and accurate;

4.3 Co-operate with any reasonable request they make;

4.4 Comply with the terms of an award made under section 10 of the 1996 Act

4.5 Forward to the surveyor upon receipt any notices or other documents relating to the works;

4.6 Allow access to your property or other lands upon reasonable notice; and

4.7 Inform the surveyor as soon as possible of any damage that may be caused to your property.

5.1 Subject to clause 5.3 below, the surveyor will not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the surveyor’s appointment or these Terms.

5.2 The surveyor’s total liability to you in respect of all other losses arising under or in connection with my appointment or these Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of any fees that the surveyor have billed or incurred in arising out of or connected with my appointment.

5.3 Nothing in these Conditions shall limit or exclude any liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or the terms implied by section 2 of the Supply of Goods and Services Act 1982.

5.4 This clause 5 shall survive the termination of my appointment and/or these Terms.

6.1 We draw your attention to section 10(2) of the 1996 Act which provides that you may not terminate the surveyor’s statutory appointment.

6.2 They may deem themselves incapable of acting under section 10(5) of the 1996 Act. If they deem themselves incapable of acting then the contract between us shall be terminated save that any rights or remedies accrued to them and obligations or liabilities upon you as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of these terms and conditions which existed at or before the date of termination or expiry.

6.3 Without limiting my other rights or remedies, the surveyor may suspend their services if you fail to pay any amount due on the due date for payment.

7.1 We will retain copyright, any related rights and any other intellectual property rights (whether registered or unregistered) in any documents the surveyors produce in the course of their appointment.

7.2 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.

7.3 A waiver of any right under these Terms or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the surveyors in exercising any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

7.4 Any disputes or difference between us shall be referred to an expert determination by a solicitor or barrister to be agreed between us, or in the absence of an agreement to be appointed by the Chairman or equivalent office for the time being of the Faculty of Party Wall Surveyors.