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Philippe: Hi, hi and welcome to another edition of Party Wall Pro Podcast and today I’m very excited to have Stuart Birrell with me from Murray Birrell. He’s a Fellow of the RICS and 40 years into the job, if I’m not mistaken.
You are also a member of the London Committee of the Pyramus & Thisbe Club. We have a few questions that our audience have sent through that we’re going to go through. But before we start, Stuart Birrell, how did you get to where you are? Give us a bit of background of where you come from and how you ended up here?
Stuart: It’s a long story. It’s 43 years now incidentally. I got into surveying by complete accident. I left school, had enough of education, worked on building sites and hurt my back. I went to what used to be called the employment office to sign on and they told me, “You can’t sign on until you’ve applied for jobs.”
I had been on a course with John Lane when I was at school. So I said, “Quantity Surveyor” and they said: “do you want to be a quantity surveyor”. “No, I don’t. But you asked me to put a name down, so I have. Went for a couple of interviews, didn’t like them and I eventually ended up having an interview with somebody called a building surveyor, which I had never actually heard of. And I quite like technical drawing and is what you did in those days when you started. So I took the job and the rest is history really. That was in 1982. I became a fellow in 1995. Keith and I started our business 1992. So we’re 25 years old now. So yeah, it has been a long time.
Philippe: Yeah, you’ve seen it all. So 25 years in the business. How is it going?
Stuart: Yes, it’s doing OK. We’ve grown organically. We’ve never been great businessmen. We’re suppliers basically. But we’ve done OK. We’re still talking to each other, which is amazing really.
Philippe: Yes. So how did you meet Keith and decided to start a business together?
Stuart: Well, yeah. We had virtually parallel careers. I met him at college in the late ’70s and we qualified on the same day. I got him a job where I was working at John Pellings at the time. We became senior surveyors on the same day and associates on the same day, partners on the same day and eventually we left on the same day. So it’s rather boring really. But yeah, met him a long, long time.
Philippe: And from the general surveying into party wall – I’m not sure what the kind of ratio party wall to other general building surveyor work you’re doing at Murray Birrell. But how did you end up developing this specialism?
Stuart: You’re looking for income streams running a business, within your skill set. It has to be within your skill set I think. Both of our history, we’re contract surveyors really. That’s what we grew up doing. Mainly maintenance and rehabilitation of existing buildings. You get involved in party walls when you’re doing it. So you start doing it. You learn a little bit. You work with people. You listen. You learn. 15, 20 years ago, it was probably a negligible part of our business. Now it’s about 22, 23 percent roughly and we do a lot of licenses to alter, we still do a lot of construction work. We do dilapidations. So we do most things that building surveyors do. But I sort of specialised to a greater degree over the last, last 10, 12 years I suppose really.
Philippe: And enjoying it?
Stuart: Yes, I do. It’s less confrontational than doing construction work. So it amuses me when people say, “Oh, you’re being really difficult.” You don’t know what difficult is.” People want to punch your head off in construction work… I do enjoy it. I do enjoy it.
Philippe: Now that’s interesting because more and more people seem to say that party wall is becoming more confrontational. Do you agree with that or not?
Stuart: I think general behaviours have become more confrontational and not only party walls. But it depends on what you compare it with. I think if you go into it to try and reach a resolution, you generally will. You have to be reasonable with a give and take and you normally get it.
Philippe: Have you found yourself in front of someone where you have no other way of just being confrontational.
Stuart: It happens occasionally. It doesn’t happen very often. But you’ve got mechanisms and you have to deal with that when it happens. If you’re really, really struggling, you’ve go the third surveyor or you go ex parte if you’re really brave. You don’t have to put up with it, do you, if you don’t want to.
Philippe: Yeah. Is it a personal trait or do you think it’s an experience or lack thereof?
Stuart: I think it’s a personal trait generally speaking. Sometimes it’s a lack of experience and lack of confidence and people become aggressive as a result. But generally, that’s not the case. I think there are just certain people who are that way inclined.
Philippe: So let’s get into the meat of it.. As last time, we went out to our members and asked for people to submit the questions. So fees is something that comes up quite a bit. So first, I think, yeah, it’s a good starting point to start with what gives the surveyor the right to recover that fee and what constitutes reasonable or unreasonable fees.
Philippe: So I sent you the questions beforehand. So you know.
Stuart: I haven’t had the chance to think about it.
Philippe: Well, you can deliver more value that way. So –
Stuart: Yeah, good, good.
Philippe: So here we go.
Stuart: Well, if you’re instructed to carry out work, you have a right to charge them and recover fees no matter what it is. It’s slightly different with party walls because there’s a statutory appointment involved as well. So starting with building owner, you have to have a statutory appointment obviously. I always have a side appointment with it which is a commercial agreement with the building owner. Usually building owner’s fees don’t go in the award. You do want some mechanism to recover your fees if the owner decides he doesn’t want to pay them. I don’t really see any difference in that to any other work you carry out. I have agreements with my clients. They agree the fees and I charge them and they pay us. But you do have the right obviously. Before Farrs Lane the award would cover that usually the adjoining owner’s fees would be paid by the building owner. Not always, but usually. But the debt was owed to the the adjoining owner. You had to transfer the debt if you wanted to pursue the fee. Post-Farrs Lane, you can actually put down that the building owner will pay the adjoining owner’s fees and you can pursue it and it becomes a simple debt if it’s not appealed. You can also put in the building owner’s fees into the award if you want. It’s not general practice but it’s becoming more so. All I would say, if you’re going to do that, I think the adjoining owner should check the building owner’s fees in the same ways he’s checking adjoining owner’s fees. They have to be reasonable. But if you’re going to rely on the statutory instrument, they should be works technically in pursuance of the act. So if you got involved in doing other advice on it, then that should be charged separately. That shouldn’t go in the award in my opinion. But you have an absolute right to recover your reasonable fees. As to what’s reasonable, that’s a much more difficult question to answer and it does depend on I think the type of work you’re doing. Obviously where in the country you’re working does make a difference as well. The fees have not just to be correct in, for example: I spent this amount of hours and that’s my hourly rate and that’s what it is. I think they have to feel right. You get some jobs and you look at what you actually spent and, you realise, “I can’t charge that. It’s ridiculous. It’s out of proportion.” Compared to most areas of surveying, of building surveying anyway, it’s quite lucrative work. I think you can afford to occasionally make it feel right as well as be right. I think that’s by and large where it goes wrong. You get a small domestic job and you have those who charge thousands of thousands of pounds. It’s almost more than the works, it’s just wrong. It’s the sort of thing that brings the act into disrepute. But as to what’s reasonable and what’s a reasonable hourly rate, the government in their wisdom, got rid of scale fees. They used to have a scale working out an hourly rate. So it’s what you can get away with by and large as far as I can see. If you’re going to charge an enhanced hourly rate, you’ve got to add value. I mean there’s no point saying, “Oh, I’m going to charge £250 an hour,” and you just spend just as low as an assistant would, charging £120. You should do it quicker. You should add value. It really should balance out. Years ago, on my first third surveyor referral to John Anstey, I got his hourly rates through, and this wouldn’t sound that high now, but it was astronomical at the time. I told myself: “Oh my god! What is this going to cost? But I said let’s “go for it”. Yes, his hourly rate was very high and the amount of time he took was negligible. I think he did the whole thing in 2.5 hours and the fee was correct despite the fact his hourly rate was probably three times anyone else I had ever met at the time. If you want to charge the enhanced rate, you’ve got to add some value. I’m not sure everybody does.
Philippe: Yeah. So the example of an adjoining owner’s surveyor is on the ball. He does his job but the building owner’s surveyor is very slow at coming back to you. The problem is, is that – and he comes back to you after three, four weeks. But during those three, four weeks, you’re working on your other 20 jobs. So you have to go back to your file. You have to – and that, you need to charge for that I guess.
Stuart: Yes, of course you do. When I’m a building owner and it happens – and it usually happens when they ask for some reasonable information that’s not available. It takes weeks, when it should have taken days because the building owner is not in a mad rush. You have to accept that’s going to happen. That is a reasonable fee. I mean if you’ve incurred time through the way your owners behave, then yeah, fine. The one that really irritates me is when you get a building owner’s surveyor who’s going on a fixed fee. There’s no definition of the surveyors’ roles. There is an acceptance of what a building owner’s surveyor or adjoining owner’s surveyor does as part of the process, but there’s nothing written down that says the building owner will take the schedule of condition, adjoining owner will check in, all those things… So they’re getting a fixed fee and they do next to nothing. Then the adjoining owner surveyor in order to get in over the line ends up doing a lot of work that you would normally expect the building owner’s surveyor to do. It’s wrong and it’s what’s wrong with fixed fees to be honest with you. If you’re going to do a fixed fee, you’ve got to do the job. You can’t get a fixed fee and then tailor how much time you spend depending on what you’re charging. That is becoming more commonplace and it’s worrying. It would be nice if we could define who does what. But I’m not sure that you really could as you’re both part of a tribunal, you are working together supposedly.
Philippe: That’s actually – it’s a good transition to my second question under fees is, “What is the current trend? Is that actually going upwards, downwards or is it –?”
Stuart: Trending what? Sorry, Philippe.
Stuart: Trending what? Sorry.
Philippe: The fees charged. So you’re talking about fixed fees. Are more and more people doing fixed fees for building owner work?
Stuart: Yeah, there seem to be, especially on domestics. I understand it if you’re building a small extension and you get caught in the Party Wall Act and you want to control your costs. People are putting in fixed fees. There’s nothing wrong with it. I mean it’s completely a commercial decision. If you’re running a business, you choose to do it. Having done it, you just have to accept you’re still going to do the job. You can’t go “oh, I’ve got it very low, so I won’t do it. I will get the adjoining owner to have to do my job for me.” It’s not completely wise, but it’s happening more and more. Yes. There’s pressure on fees. There’s no restriction on who can be a party wall surveyor. Anybody apart from the owner himself can be a party wall surveyor. There’s no definition, criteria or anything. As more and more people become involved, you’re getting people who are not experienced and just there as a way to make an easy buck, I suppose. Yeah, it’s going to become a bigger problem I think. We need to find a way of defining what is a competent party wall surveyor and someone who possibly isn’t.
Philippe: And there’s nothing you can do if you find yourself appointed by an adjoining owner and you realise that the building owner’s surveyor is on a fixed fee. You know what’s coming.
Philippe: You can determine with – the building owner surveyor straight up. You know, listen, you go and do this and that and don’t expect me to start doing your job.
Stuart: You can do that. It does help. You end up working with them to get it over the line because at the end of the day, you have a responsibility to both owners to get things sorted out and getting an award in place if there’s a dispute. So you have a responsibility. It’s just irritating to be honest, especially then when they can say your fees are too high. But they’re only too high because you didn’t do your job. It hasn’t actually happened to me, but I’ve heard it happen to other people.
Philippe: I was going to say this is – it’s probably what’s happening more often now. If you as an adjoining owner’s surveyor have to do all the work, then all of a sudden, they – you’ve charged X amount and this is far too much.
Stuart: I don’t know the answer. It’s going to get worse. There’s no question about it. I mean commercial pressures and people undercutting fees is bound to cause its own problems. The government have been for the last 40 years absolutely committed to free market economics and that’s it. You can’t control fees. That’s what the market will bear. The trouble is that when you have a statutory appointment and the rest of it. It makes it difficult.
Philippe: And with more and more “party wall surveyors” out there, it is bound to go – the fees are bound to go South, right?
Stuart: Yeah, nothing – no question about it.
Philippe: Except for the very few that are – the good people recognised and staff who can actually – who can ask for higher fees and therefore stay on the path.
Stuart: Yeah, that has got to be – I think that market will become more limited. I think the big developers will use the people they want to because the value is in getting things sorted out properly and quickly, as opposed to saving a few hundred pounds. But I do think generally there will be downward pressure on fees. No question about it at all.
Philippe: So conclusion, don’t get into the party wall business because it’s going to shrink.
Stuart: I think it will still be a profitable business and there’s always going to be room for people who are very good, whatever you do. I mean there’s a premium to be charged if you want somebody who’s really good at whatever it is. But know that eventually the market will balance out, which is effectively what the government – expected to happen. Unfortunately quality goes out the window when that happens.
Philippe: Yeah, right.
Stuart: But there’s plenty of people around charging eye-watering fees who don’t add value. It’s two sides to the story really.
Philippe: As in everything. So that’s good because we’re going to cover makes a good party wall surveyor. Before we get there, so second question was very specific and it’s probably a yes or no answer. So the example is: “a party structure notice with a two months’ notice period is the subject of a dispute and an award. The award is served before the end of the two months’ period. Can the building owner carry on with the works or will he still require consent from the adjoining owner to proceed before the two months’ notice period is complete?”
Stuart: Yes, he will. There you go. I would also say that – I mean two months to get an award, it’s doable. But it doesn’t happen when the owners don’t like each other. They will not respond. They will allow the 10 days to run out. So you’ve used a month before you even got surveyors appointed. By the time they decided they want to let you in for the schedule of condition, it’s now a fortnight and all the rest of it. You’re going to be over two months anyway and once two months have run, you can start straight away. So I would suggest that if you – you had a situation where the dispute was “I’d really like an award in place but we like each other anyway”. You will probably get consent and people do start anyway. I’m not entirely sure legally. And trying to get an injunction would likely fail I would guess. At the end of the day, we should be encouraging neighbours to do is talk to each other and reach agreement. You shouldn’t be encouraging disputes. You should be trying to settle disputes when they occur. But also they live next door to each other. We’re all going to walk away and leave it. They got to carry on living next door to each other. They should be talking. But the short answer is yes, you would need a consent, I think.
Philippe: How would you encourage that? How do you do that?
Stuart: I will say what I’ve just said to you. Look, I’m going to walk away from this. You’re going to be living next door to them for the forseeable future. Yes, there are certain things you might not like and things you might want to negotiate if you can to reduce the impact on you. But the bottom line of it is they’re neighbours. So treat your neighbours as you’d like to be treated by your neighbours. Again, that has gotten worse over the last 20 years. Neighbours are not as neighbourly as they used to be.
Philippe: Yeah. Yeah. It’s only going one way, right?
Stuart: Yeah. You can understand it when it’s a big development next door who is going to make a lot of money and making your life a misery, you can understand it. But when it’s actually your neighbour who wants to carry out some relatively modest works. – Again, in case of a basement I would understand… – I think try to be reasonable, try to reach a goal with your neighbour. There aren’t enough notices that are consented. Let me put it that way.
Philippe: Yeah. There’s a natural conflict as well for surveyors. Sorry for saying that. But if an adjoining owner calls you up and says, “I just got this notice,” you have a duty to try and push that adjoining owner to consent maybe…
Stuart: I think we have a duty to point out the options. In the end of it, it’s entirely up to them, whether they want to consent or not. If it was one I genuinely thought they should consent I would get back to them a bit more strongly saying: “Why are you dissenting? What are you worried about?” I mean there are ways to cover most of these things without incurring probably thousands of pounds. What you’re saying is we have a commercial bias I suppose. I don’t think most good party wall surveyors would do that. I would like to think most of them would point out that really – you could comfortably consent this. It doesn’t through the Party Wall Etc. Act 1996 away. In case there is a dispute you can rely on it later on. That’s the advice you should give.
Philippe: Well, that takes us nicely to the next question of, “What makes a good party wall surveyor?”
Stuart: Yeah. OK, that’s a lot of thought actually because there isn’t a definitive answer because you meet people from all walks of life and some are good and some are bad. Most of the ones I respect have been good building surveyors or construction professionals before they went into party wall. They had a grounding in construction. They understand how buildings go together. They understand a set of drawings, they can read them, they can understand the potential ramifications, what is likely to cause a problem, what probably can be comfortably put aside. These are the things I would want to see in a good party wall surveyor. Do you need to be qualified? I’ve met plenty of party wall surveyors who aren’t qualified who are very competent. One of the worst party wall surveyors I ever met was a fellow at the RICS. So there’s no absolute on that. I do think though if you’re a member of one of the big construction institutions, there’s a governance involved. There’s governance covering ethics, conflicts of interest, that sort of thing that you have to abide by. I suppose, yes, I would like people to be members of one of the institutions. So, they’re covered by the other things outside the Act, if you like. Whether you’re good at your job or not, there are ways of dealing with it. But the governance, the way you behave and the way you run your business is important. So, I think they should be members. At the moment, anyone can do it. Beyond that, construction, that I just mentioned, understanding of the Party Wall Etc. Act 1996. It’s amazing how many people haven’t read it. They should have a copy of the Act. They should keep abreast of case law because it changes. It’s getting more and more cases taken to court, but still not very many.
Philippe: How do you do that, sorry?
Stuart: How do I do that? I keep – there’s a couple of solicitor’s firms that keep blogs and recent cases. I obviously go to a lot of the P&T presentations and I meet a lot of party wall surveyors socially. It’s amazing how often you end up talking about case law. But you need to make an effort. It’s as simple as that. You don’t need to be a lawyer and know all the bits and pieces, but there have been cases recently that they’ve made a difference in the way you should behave. I think it’s incumbent upon you as a professional to keep up-to-date. It’s as simple as that really. Beyond that, it’s a personality thing. If you’re reasonable and even-handed, most people will treat you in a like manner. You’ve got to be firm when you think they’re wrong obviously. But look to reach agreement. Don’t look to cause discord. Don’t look to create disputes basically.
Philippe: And do you think this statute should have defined a little bit better what a party wall surveyor should have been?
Stuart: Personally, I would have liked it to have defined it as a member of the construction institutions. They’re not necessarily chartered, qualified, but a member so that they are covered by governance. That would at least give some control over it, not a lot. You would have some ways to complain if you really thought someone was behaving badly.
Philippe: And you think that’s something that will be put in place eventually?
Stuart: I don’t know whether we will ever get the chance to amend the Party Wall Etc. Act 1996. I mean it was a great thing when it was done. The trouble with having an act of Parliament as opposed to an instrument is when one needs to change it. You’ve got to go back to the House of Commons and they have other things on their minds especially at the moment. So, I don’t know. It would be nice if we could amend the Act. But then again you would update it and then in a few years’ time, things would happen that you didn’t foresee and you would want to change it again. I mean that’s so – I doubt it is the truth.
Philippe: So OK, and education? Then obviously parts of that. So keeping updated, case law. So let’s go to the training part then because a lot of people have actually asked about training: “your views on common training for surveyors who want to educate themselves on the application and interpretation of the party wall and all that. Is current training available adequate?”
Stuart: There isn’t – an actual training, official training. You don’t have to train. You just call yourself a “party wall surveyor” and do it. At the P&T, we had guidance notes but that’s all they are. They’re guidance notes. I mean I don’t absolutely agree with everything that’s in them but it says “this is what we believe how you should interpret the Party Wall Etc. Action 1996”. They’re available to read and it’s amazing how many people don’t. We run – in London, we run about, at least 10 this year, evening presentations on various aspects. We recently polled the membership to see what they’re interested in hearing about. So we do that. You’ve got to be prepared to read. You’ve got to be prepared to do a bit of effort. In relation to case law, it’s largely on the solicitor’s websites so, you’ve got to go look for it. There have been a couple of recent books written on the Party Wall Etc. Act 1996 by lawyers worth reading because eventually you will end up involved with them and you do need to understand how they think about it, completely different to the way surveyors do by and large. They read things literally whereas surveyors interpret. You will find a lawyer, depending on which side he sits, will simply take the literal view if it suits him and the other one if it doesn’t. You need to understand that. You need to have some basic understanding of how it works. Is the training good enough? It is if you’ve come through as an experienced surveyor I think. You will get involved in easy ones when you start. You should never take on a job that you’re not sure you can do. If you’re not an experienced party wall surveying, then don’t take a basement because it’s going to be messy and if you’re not experienced, and you’re not up-to-date with everything you’re going to struggle. But you’ve got a small domestic extension, the process is the same but the arguments will not. Get used to doing it and learn on the job. Hopefully you won’t be on your own. You will be working in a company with other experienced surveyors around who can guide you with that. That’s probably the best way to learn – off a good surveyor. I think it works to a degree providing that you are – you have that basic background. If you’re coming in cold and you have no surveying experience at all, I don’t know how you learn to be honest with you …
Philippe: But I think it’s probably coming from a – there’s a lot of theory to it and I don’t know if – are there any practical training sessions that are a bit more hands-on. I don’t know. Obviously –
Stuart: In companies, it happens. I mean I have junior staff that work with me and I make an effort to train them. I don’t just say go and do that. I explain why. I explain what needs to be done. I give advice on background reading. I quiz them about it. I have responsibility to train my junior staff and I do. I’m sure most of the other practices do the same. And that’s the best way to learn basically. But as you’re training outside of it, if you’re on your own, you really shouldn’t be doing it quite honestly.
Philippe: You mentioned the guidelines. It’s interesting because someone asked a specific question: “Do you feel the P&T guidelines accurately reflect the process, methods in use at the moment? Are they actually updated?”
Stuart: They are updated constantly actually and we have loads of arguments about what should be in it because they’re a matter of opinion. There’s a real lack of precedent legal cases on the Act. I can absolutely say they are updated all the time. They are looked at all the time. The reason it takes a long time to come out is we take a long time to agree on what we want to say basically. We’ve just redone the one on security for expenses which I’m not sure it would stand up in court. We will have to wait and see because the Act doesn’t define it at all. We take a stand, saying that’s what we think we should include because otherwise you hold the building owner to ransom. We will see what happens and eventually a case will cut through – probably a big London basement I guess. But no, they are constantly updated. I don’t agree with everything that’s in them but I don’t suppose anybody does. If that’s what the question was about, then they’re in good company. But they are updated regularly.
Philippe: Security for expenses is something that we might have to cover eventually.
Stuart: It needs a case actually to be honest with you. I mean it would be lovely to get a precedent judge to say that’s reasonable and that’s not what it should include. I think we will be very lucky to get that. It could include anything theoretically. It just says you can request security for expenses and surveyors can decide. The danger is of course that you decide on a limited basis the – someone loses money and decides to sue you because you didn’t include things that should have been included. I hope I’m not on the receiving end when that one happens. But you very rarely use money collected as security for expenses. I haven’t done it. It’s interesting if you talk to experienced surveyors that haven’t really. Do you ever have to draw on the money? And almost never for what it was actually originally intended for. It’s usually there’s a bit – you get the money there. So you get it done. But it’s a definitely reason usually.
Philippe: And to conclude, How do you see the market behaving the next 12 months with everything coming our way? Have you felt a difference already? Can you see it?
Stuart: The vast majority of what building surveyors do require somebody to do a building project. Dilapidations is probably the only major area that doesn’t. Otherwise, someone has got to decide to build something and there are no two ways about it. The activity has slowed, our licences to alter has slowed in Central London. Party walls is probably about even actually, but we’ve been trying harder to get the work. Brexit has made it an uncertainty especially the way they’re carrying on about doing it. I think the changes to stamp duty made an enormous difference in Central London certainly but it will eventually work its way through as people get used to it. It’s going to be an interesting year. We’ve cut our costs accordingly and if we get lucky, fantastic but I think we will probably be 10 percent down on the total turnover.
Philippe: Right, OK. But party wall itself, normally when people don’t buy or sell, they tend to extend.
Stuart: Yeah, that will be it generally. But that seems to slow down a bit to be honest with you. I don’t know. I think everyone is just sitting on their hands, waiting to see what happens. There is uncertainty and we need a boost of confidence and we certainly haven’t got that at the moment. It has come to the stage where you don’t want to read the papers, it’s just depressing, isn’t it?
Philippe: I hope you enjoyed this. Who do you think I should interview next?
Stuart: Who have you interviewed so far? Have you interviewed Michael Cooper?
Philippe: I have, yes.
Stuart: You have. You might know he’s quite opinionated.
Philippe: Yeah. We didn’t actually cover much. It was more about the – about him and his life and actually getting back on to just try to get into more –
Stuart: He’s quite a good value actually – if you wanted to. Who else? Because you’ve done Andy – he’s another one. I assume [0:34:23] [Indiscernible].
Philippe: Gram North, no. I haven’t done Gram North yet.
Stuart: It would be interesting with Graham because he was the heir to Anstey. He has a slightly more relaxed view than a lot of surveyors now they say. Yeah, I think you will be able –
Stuart: I think you should do it anyway with this …
Philippe: I will do that. I will try to reach out to him yet again.
Stuart: Yes. He’s not good at coming back to you. I will grant you that. He’s very slow.
Philippe: Well, Stuart Birrell, thank you very much for your time.
Stuart: You’re welcome. Thank you.
Stuart’s firm: Murray Birrell
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