1.1 These Supplemental Terms & Conditions of Engagement relate to ‘Party Wall Appointments’ and are to be read in conjunction with the General Terms & Conditions of Engagement for J Browne Surveys, the Letter of Appointment and the fee proposal letter which will set out, in more specific terms, the nature of the appointment, fee basis and performance timescales together with any information required of the Client/Appointing Owner.
1.2 The purpose of these Supplemental Terms & Conditions of Engagement is to identify the scope of services offered by J Browne Surveys, and the personally appointed Surveyor in connection with the service of notices or fulfilment of an appointment under Section 10 of the Party Wall etc. Act 1996 (the “Act”).
1.3 By instructing J Browne Surveys, the Client/Appointing Owner agrees to be bound by these Supplemental Terms & Conditions of Engagement as well as the General Terms & Conditions of Engagement for J Browne Surveys.
2.1 ‘We / Us’: J Browne Surveys, or a Surveyor acting for J Browne Surveys engaged on any matter up to formal appointment under Section 10 of the Act.
2.2 ‘You’: The Client or Appointing Owner.
2.3 ‘Consultant’: J Browne Surveys, or a Surveyor acting for J Browne Surveys engaged on any matter up to formal appointment under Section 10 of the Act.
2.4 ‘Party Wall Surveyor’: The personally appointed Surveyor from J Browne Surveys who will fulfil an appointment in accordance with Section 10 of the Act. This may be in the role of either an Agreed Surveyor or a Party-Appointed Surveyor.
2.5 ‘Client’: An appointing party prior to the formal appointment of a Party Wall Surveyor under Section 10 of the Act.
2.6 ‘Appointing Owner’: An appointing party following the formal appointment of a Party Wall Surveyor under Section 10 of the Act.
2.7 ‘Schedule’: A Schedule of Condition appended to an Award.
2.8 ‘Letter of Appointment’: The signed authorisation giving J Browne Surveys' personally appointed Surveyor authority to sign, issue, send,receive and respond to any notices under the Act and fulfil duties under Section 10 of the Act as a Party Wall Surveyor.
2.9 ‘Appointment’: The service to be fulfilled by J Browne Surveys.
2.9 ‘The Property’: The subject premises to which the appointment relates.
2.10 ‘Building Owner’: The party instigating notifiable works under the Act.
2.11 ‘Adjoining Owner’: The party owning or occupying a property within the prescribed distance of the Building Owner’s property, as prescribed by the Act, who must be notified in accordance with the Act.
2.12 ‘Award’: A Party Wall Award signed and served by the Party Wall Surveyor(s).
3.0 Scope of Appointment
5.4 The Client/Appointing Owner will settle any fee account due on completion of the appointment task, or at an agreed interim stage. In general, fees for the preparation and service of an Award will become payable immediately upon service of the Award.
5.5 Where appointed by the Adjoining Owner, the fee account of the Party Wall Surveyor may be invoiced to the Appointing Owner directly in the event the Award does not state that the Building Owner is directly responsible for the Adjoining Owner’s Surveyor’s fees, or where the Building Owner is insolvent or in any way unable to settle the account of the Adjoining Owner’s Surveyor within a reasonable timeframe.
5.6 Time Charge fees shall be charged in 6 minute intervals and rounded up to the nearest quarter hour for invoicing.
5.7 Accountable Time shall be deemed to include: site visits, travel time, letters, emails, phonecalls, conference calls, meetings, reviewing documentation, reviewing and taking instructions and arranging access.
5.8 All fixed fees are quoted on the basis of one inspection, unless stated otherwise. Additional visits shall be charged on the basis of time expended at the agreed time charge rate.
5.9 In the event out of hours working is required to meet the requirements of the Client/Appointing Owner, or any associated deadline imposed by their proposed actions, time charge fees shall be charged at 150% of the standard rates set out in section
5.2. Fixed fees shall be adjusted at a multiplier of 1.5 of the original fee.
5.10 All fees attract VAT at the standard prevailing rate.
6.0 Abortive Fees
6.1 Abortive fees where J Browne Surveys is acting outside of an appointment under Section 10 of the Act shall be chargeable upon the Client’s termination of J Browne Surveys’ services. This will generally be based upon a reasonable account of the work completed up to the point of termination, but subject to a minimum charge as follows:
• Time charge appointments – An account of time expended at the agreed hourly rate, or in the absence of an agreed hourly rate, in accordance with the rates as set out in section 5.2. In all circumstances a minimum fee of £300.00 plus VAT will become due.
• Fixed Fees – Minimum of 50% of the agreed total fee due, unless the task was more than 75% complete at the point of termination, whereby 100% of the fee will become due.
6.2 Where any Sub-Consultant has been appointed by The Party Wall Consultancy on behalf of the Client/Appointing Owner, then any fees due to the Sub-Consultant at the point of termination shall also become chargeable to the Client/Appointing Owner on the basis set out in section 6.1.
6.3 Where appointed in accordance with Section 10 of the Act by the Adjoining Owner, a parallel contractual obligation arises whereby the Party Wall Surveyor may seek redress directly from the Adjoining Owner for payment of fees in the event the Building Owner defaults having been awarded sole or partial liability for such fees. Accordingly, the Appointing Owner may, by default, be contractually obligated to service any such debt due to the Party Wall Surveyor even if they were not ordered to pay the Party Wall Surveyor fees pursuant to the Act.
6.4 Where appointed by the Adjoining Owner either in the capacity of ‘Adjoining Owner’s Surveyor’ under Section 10(1)(b) of the Act, or as ‘Agreed Surveyor’ under Section 10(1)(a) of the Act in circumstances where the Building Owner is ordinarily liable for all Party Wall professional fees, the Adjoining Owner may still become liable for the fees of the Party Wall Surveyor where the Adjoining Owner has
invoked the involvement of the Party Wall Surveyor in such a way that such fees cannot reasonably be awarded against the Building Owner.
6.5 Where the parties to a dispute under the Act mutually agree to contract outside the Act in order to settle their dispute, or dispense with their dispute such that the Act no longer applies, any fees due to the Party Wall Surveyor so appointed shall be contractually payable in accordance with section 6.1.
7.1 In the event J Browne Surveys is required to appoint a Sub-Consultant on behalf of the Client/Appointing Owner, then the fees of that Sub-Consultant shall be submitted to the Appointing Owner, or the responsible party directly, and as such, the Sub-Consultant will engage directly with the Appointing Owner or responsible party regarding defrayment.
7.2 The abortive fees of any Sub-Consultant shall be on the same basis as set out under section 6.0.
8.0 Involvement Prior to Formal Instruction (Pre-Appointment Fees)
8.1 J Browne Surveys reserves the right to make a charge for any required initial advice or detailed scrutiny of any documentation prior to formal appointment on the basis of an agreed time charge rate in addition to any subsequently agreed fee pertinent to the formal instruction. In the absence of agreement on the time charge rate to be applied, the rates detailed in section 5.2 above shall apply. J Browne Surveys may agree, at its discretion, to waive any such preappointment fees or offset them against a subsequent formal appointment fee.
9.1 Unless stated otherwise, all disbursements shall be in addition to the stated fee. This extends to travel costs, stationery, postage and general out of pocket expenses. Travel costs shall be charged at 50 pence per mile where travelling by car. Travel costs for train, bus, taxi, ferry, boat or plane shall be charged at the operator cost, plus 20% for administration.
9.2 Disbursements for roof access shall not be included in any stated fee and shall be identified separately. Unless stated otherwise, the minimum costs in this regard are as follows:
• 2-Section Ladder - £85.00 + VAT for 1 day of hire (including delivery and collection), plus arrangement & attendance fee of £65.00.
• 3-Section Ladder - £125.00 + VAT for 1 day of hire (including delivery and collection), plus arrangement & attendance fee of £85.00.
• Cherry Picker (standard 16m boon) - £450.00 + VAT for 1 day of hire, plus arrangement & attendance fee of £95.00 + VAT.
9.3 Duplication of documents and Awards shall be chargeable as a disbursement as follows:
• Award (without drawings or Schedule of Condition) £20.00 per copy
• Award (with drawings) £30.00 per copy
• Award (with Schedule of Condition incl. colour photos) £40.00 per copy
• Award (with drawings and Schedule of Condition incl. colour photos) £45.00 per copy
• Photo CD £8.00 per CD
(The above charges exclude postage and packaging which shall be charged at cost).
9.4 Travel time shall be charged at the agreed standard hourly rate of the Appointed Surveyor.
10.0 Client’s/Appointing Owner’s Duties
10.1 The Client/Appointing Owner shall provide J Browne Surveys, at the point of instruction, with a copy of any available asbestos register, report, record or other such associated information to inform the Surveyor as to the existence and location of any known asbestos within the property.
10.2 The Client/Appointing Owner shall ensure that funds are readily available to settle J Browne Surveys’ fee account within 14 days of receiving an invoice in respect of work undertaken in accordance with the Client’s/Appointing Owner’s instructions, or in the case of service of an Award, the Appointing Owner will settle the Party Wall Surveyor’s account immediately upon service of the Award.
10.3 The Client/Appointing Owner shall ensure J Browne Surveys is granted full and unhindered access to the premises in order to undertake the inspection, or provide such necessary information as to access arrangements.
10.4 The Client/Appointing Owner shall ensure the subject premises are fully and properly insured for the duration of any works being undertaken.
10.5 The Client/Appointing Owner shall ensure J Browne Surveys is in receipt of all information to allow the proper and safe undertaking of the appointment without unknowingly being exposed to fraud, deceit, money laundering or being complicit in any other such immoral action which may or may not be an intention of the Client/Appointing Owner.
10.6 Where the Client/Appointing Owner has self-served Notice(s), J Browne Surveys reserves the right to verify the validity of the Notice(s) prior to accepting an appointment to act as Party Wall Surveyor, and if necessary, will revise and reissue Notice(s) to ensure validity; all associated costs shall be chargeable to the Client/Appointing Owner in accordance with the rates as set out in section 5.3.
11.0 General Exclusions
11.1 J Browne Surveys will not be responsible for the direct payment of any fees incurred by the appointment of other Consultants or Sub-Consultants, whether or not connected to, or associated with, J Browne Surveys’ appointment. Any other Consultant, Sub-Consultant or Third Party appointments are to be made and paid for directly by the Client/Appointing Owner.
11.2 Where another Consultant’s document or a Third Party document is to be appended to an Award prepared and issued by J Browne Surveys, no liability is accepted by J Browne Surveys for the content of any such reports, attachments or enclosures.
11.3 J Browne Surveys accepts no liability for the actions of other Consultants, Sub-Consultants, Contractors or third parties directly appointed by the Client/Appointing Owner on the same project or instruction.
11.4 No Schedule prepared by J Browne Surveys shall be deemed to be an exhaustive account of all repairs required to the property.
12.0 Reproduction of Information & Copyright
12.1 Any Schedules, Awards or associated documents prepared or issued by J Browne Surveys are for the sole use only of the parties to whom they are addressed and should only be used within the context of the instructions under which they were prepared. They may only be disclosed to other professional advisers assisting in respect of that purpose by prior agreement. No responsibility to any Third Party for the whole or any part of the contents is accepted.
12.2 All advice given by J Browne Surveys, its Consultants or Sub-Consultants under this appointment is for the sole use of the Appointing Owner and is confidential to the Appointing Owner and their professional advisers, unless the subject of an Award. J Browne Surveys accepts responsibility to the Appointing Owner alone for any such advice and absolutely no responsibility or liability whatsoever is accepted or owed to any Third Party who relies on all or part of any such advice; this shall be entirely at their own risk. All advice will be given with the skill, care and diligence reasonably to be expected of a competent Surveyor. For the purposes of the Contracts (Rights of Third Parties) Act 1999, it is hereby agreed that any appointment accepted by J Browne Surveys or any of its Consultants or Sub-Consultants is on the basis that no benefit or right exists to a Third Party with regard to the use of any advice given by J Browne Surveys.
12.3 Neither the whole nor any part of any Schedule, Award or associated document prepared or issued by J Browne Surveys may be included in any published document, circular or statement or published in any way without the prior written approval of J Browne Surveys in the form and context in which it may appear.
12.4 No reliance will be placed by the Client/Appointing Owner upon draft documents or incomplete documents or advice (oral or written) provided by J Browne Surveys, its Consultants or Sub-Consultants as these may vary significantly from any final document.
12.5 J Browne Surveys reserves the right to withdraw from circulation, without prior notice, any Schedule, Award or correspondence for the purposes of revision or amendment.
12.6 All Schedules prepared and issued by J Browne Surveys is copyrighted and protected by copyright law.
13.0 Confidentiality & Third Party Rights
13.1 All advice provided by J Browne Surveys, either orally or in any written media, is for the sole and exclusive use of the Client/Appointing Owner and is confidential to the Client/Appointing Owner and any associated professional advisers. J Browne Surveys accepts responsibility to the Client/Appointing Owner alone for the stated purposes of the advice.
13.2 All advice provided by J Browne Surveys, either orally or in any written media, will be given with the skill, care and diligence reasonably to be expected of a competent Surveyor and shall be used within the context of the instructions under which they were prepared. No responsibility whatsoever is accepted by J Browne Surveys to any other person other than the Client/Appointing Owner.
13.3 No benefit or right exists to a Third Party in respect of any advice given by J Browne Surveys, either orally or in any written media, for the purposes of the Contracts (Rights of Third Parties) Act 1999. Any party relying on any advice given by J Browne Surveys, either orally or in any written media, does so at their own risk.
14.0 Terms of Payment
14.1 Service charges on outstanding accounts:
All accounts are to be settled in full within 14 days of the invoice date (the ‘due date’). Invoices in respect of the preparation and service of Party Wall Awards are due for settlement immediately upon the service of the Award(s) on the respective parties allowing for the ordinary course of post.
The due date shall therefore be the 2 working says following the date of service of the Award(s).
A service charge of £30.00 plus VAT or 3% of the unpaid balance plus VAT, whichever is the greater, shall be applied every week or part thereof to outstanding balances not received by the due date in respect of fees determined in a Party Wall Award where we are appointed in the capacity of either the ‘Building Owner’s Surveyor’ pursuant to Section 10(1)(b) of the Act, or the ‘Agreed Surveyor’ pursuant to Section 10(1)(a) of the Act. A service charge of £30.00 plus VAT or 3% of the unpaid balance plus VAT, whichever is the greater, shall be applied every month or part thereof to outstanding balances not received by the due date for all other fees. We reserve the right to vary the service charge and rate of interest without further notice.
Any account which remains outstanding 60 days beyond the due date may be passed to Debt Collectors without further notice and such accounts would then be subject to an additional minimum surcharge of £125.00 plus VAT to cover the administrative costs incurred. Such accounts shall also be subject to any and all other costs incurred in obtaining settlement. Accounts outstanding after 30 days from the invoice date for the preparation and service of Party Wall Awards or in respect of any Post-Award involvement pursuant to Section 10(1) of the Act shall be recovered through the Magistrates’ Court pursuant to section 17 of the Act.
14.2 Retention of Title:
All goods, documents and correspondence shall remain the property of J Browne Surveys until the invoice has been paid in full and the Appointing Owner shall remain a bailee until payment is made in full.
14.3 Complaints and Discrepancies:
Any complaint by the Appointing Owner and/or discrepancy relating to this invoice must be notified by the Appointing Owner to J Browne Surveys in writing within 5 days of the date on the invoice. A copy of our Complaints Handling Procedure is available upon request but shall not apply to appointments held under Section 10 of the Act.
14.4 Compensation on Debts:
J Browne Surveys reserves the right to seek financial compensation for the inconvenience of chasing outstanding fee accounts under the Late Payment of Commercial Debts (Interest) Act 1998. This is to include interest at 8% above Bank of England base rate.