Party Wall Award clauses
Here are a few comments to clauses that I come across regularly when dealing with 2 surveyor awards, either in draft awards forwarded to me or inserted into draft awards returned back to me, some are one-off clauses.
I look forward to any comments anyone has to these clauses or my comments. This is another work in progresses which just gets added to as when… mainly if I want to switch off from something else.
Horticultural ‘relating to the study or activity of growing garden plants’.
If we break this down and look at the ‘horticultural’ element.
What this says is ‘Where applicable make good all horticultural damage to the adjoining owner’s property occasioned by the said works in materials to match the existing fabric and finishes….’ Really? Are you going to mend a plant in materials to match the existing fabric?
In essence, if I am correct and we delve a little deeper, reading the dictionary definition for ‘horticultural’ states ‘relating to the study or activity of growing garden plants’
Therefore, IMHO, the clause reads..’Where applicable make good all damage relating to the study or activity of growing garden plants to the adjoining owner’s property occasioned by the said works in materials to match the existing fabric and finishes’.
‘Horticultural’ is an adjective – how can you cause damage to, and repair an adjective?
This does not appear in the FPWS template awards.
This clause is somewhat ambiguous and is included in the Pyramus & Thisbe Club (P&T) template award and appended to the Green Book 3rd ed. It s not included in the FPWS template award.
First of all it is not a requirement of the Act as this clause suggests that the third surveyor may not agree with one of the two appointed surveyors but this clause states that the Act requires him to settle the matter. Ordinarily there can only be a dispute between the two appointed surveyors and they would call upon the third surveyor.
The wording states that he shall [mandatory] settle by award ‘all matters’ or ‘any matters’ this appears to be somewhat ambiguous giving the third surveyor the right to exercise his discretion as to whether he leaves matters ‘still in dispute’ between the owners including the right to execute any work, the time and manner and any other matter including the cost of making the award. There seems to be a bit of a misnomer as the word ‘shall’ is used in this clause whereby both ‘shall’ and ‘may’ are used in different contexts in the Act.
What is amusing with this clause is that the clause inserted prior to the clause in question stated ‘All foundation excavations are to be infilled with concrete on the same day, and no excavations are to remain open overnight, nor over any weekend.’ That was the extent of the notifiable works; the AOS was stipulating that this ~4m of excavation be infilled on the same day, presumably an 8 hour day. On this basis the notifiable works had a duration of 8 hours. The access to the adjoining owner’s land was a gate and dropped kerb to the street with residential parking restrictions.
Why would the building owner have to maintain 24 hours clear and unobstructed access? they are not traffic wardens and what jurisdiction do they have in the street anyway???
Why would excavations be left open overnight and at weekends if they are to be infilled with concrete on the same day??
Really? for ~4.5 m of excavation which had unfettered access from the road.
An exclusion clause- it is very difficult to successfully implement any clause that absolves someone from any liability or responsibility from something they agree to.
What he is saying here is that you are quite happy to agree matters ‘or accept them??’ with anyone on site but do not accept responsibility for what you have just agreed to. Why would you be agreeing structural issues if you are not suitably qualified? as was the case here. In essence, the surveyors have just agreed an Award but absolve themselves from any responsibility for the Award that they expect others to adhere to.