Primarily, the Act lays down the procedural compliance and requirements arising from any owner of land or buildings proposing to undertake building works that, by definition, affect the land or buildings of an adjoining owner.
WORK COVERED BY THE ACT
The principal categories of such involvement are:
• works physically affecting the party wall between two properties;
• works physically or indirectly affecting an adjoining building;
• excavations and/or building works that could have an effect upon adjacent but remote properties.
NOTICES AND REPLIES
The party proposing to carry out any works under these categories is termed “the Building Owner” who is required to give prior notice of his proposals to an adjoining leasehold and/or freehold property owner who is termed “the Adjoining Owner”. At or pursuant to this juncture, one of the following procedures is adopted:
1. the Adjoining Owner agrees and consents to the proposed work;
2. the Adjoining Owner disagrees and both sides appoint their own Surveyor to settle all differences and produce an "Award" which lays down, in detail, the works proposed and all conditions precedent;
3. the Adjoining Owner disagrees and both parties concur in the appointment of one Surveyor termed “the Agreed Surveyor” who, on his own, produces an Award on the same basis;
4. the Adjoining Owner fails to respond, whereafter a Surveyor may be appointed for him and the matter proceeds as item 2 above;
5. when two separate Surveyors are involved, immediately they are appointed, they select an additional surveyor, termed “the Third Surveyor”, to be called in to act if one of them becomes unable to proceed, or to mediate any differences that arise between them or that might arise between the Building and Adjoining Owners.
In all normal circumstances, the fees of all/any appointed Surveyors are paid by the Building Owner, although this could be changed by an Award from the Third Surveyor when settling any dispute.
In any proposal that is beyond straightforward building construction (dependent upon the nature of the works), the appointed Surveyors may need to make a secondary appointment for any other specialist advice required, such as that from a Structural Engineer, whose justifiable fees are also paid by the Building Owner.
In minor matters, such as very small domestic building work, it is quite realistic to simply agree the proposals. In larger projects, or where the Adjoining Owner has any concerns, the matter proceeds to an Award but, in any situation, the Building Owner is required to indemnify the Adjoining Owner against the possibility of damage that might arise either accidentally or by negligence. Such damage is determined by reviewing the original condition which is normally scheduled and agreed by the Surveyors at the onset.
The purpose of an Award is to document the details of the Building Owner’s proposals that have a direct or consequential affect upon the Adjoining Owner’s land or property and to record the conditions and requirements under which the Building Owner must execute those works. The documentation includes drawings and other working details, together with method statements agreeing the procedures by which specific elements of work will be undertaken.
Once discharged upon satisfactory completion of the Building Owner’s works and obligations, the Award, (together with any amendment Awards that might record agreed changes during the course of the works), is retained with other Title papers of the property and should be transferred to any change of Title, thus maintaining a record of the work undertaken for both information and surety for any ongoing/future interest, and in the event of any matter that might arise from the works that have been undertaken.
Many, more complex matters may need to be incorporated into an Award such as the responsibility for costs, payment for use of parts of an Adjoining Owner’s building not previously built against, security for expenses where a guarantee that the work will be properly finished is justifiably required, and numerous other matters including the settlement of differences/disputes.
OVERSEEING THE AGREED WORK
The appointed Surveyors are not required to supervise or oversee the agreed works: it is the responsibility of the Building Owner to comply with the terms of the Award and the agreed details. However the surveyors will usually make one or two interim inspections during their progress to satisfy themselves that the work is proceeding reasonably or to address any specific matter in the Award or that might subsequently arise. The latter could involve something originally unforeseen or a change to the Building Owner’s proposals, which would result in the appointed Surveyors reviewing and agreeing such proposals, and publishing an Addendum Award involving further fees payable on the same basis as before.
There are many situations which can arise that are less straightforward than the basic procedure set out above. In any event, most are dealt with between the Surveyors by procedures laid down under the Act. However, although not a common occurrence, in extreme cases it can be necessary to settle differences by determination in the Courts.