WHAT IS THERE IS A FAILURE TO SERVE A NOTICE?

If an Owner served with a Party Structure Notice or a Counter Notice fails to consent to it within a period of 14 days from service, he will be assumed to have dissented, and a dispute shall be deemed to have arisen. There then follows a designated procedure under the Act.

Where a dispute arises (including where it is deemed to have arisen) both parties shall agree to the appointment of a single surveyor (“the Agreed Surveyor”) or each party shall appoint a surveyor of their own choosing and the two surveyors appointed shall select a third surveyor.

All the surveyors have a duty of care to both parties and should not be perceived as acting on behalf of one to the detriment of the other. Like experts in Court who are, in effect, officers of the Court, so the surveyors have a duty to ensure fairness as between the parties. They must be strictly impartial.

If the Adjoining Owner fails to appoint a surveyor, the Building Owner’s surveyor cannot appoint himself as the Agreed Surveyor. However, following dissent to a Notice, the two Appointed Surveyors must “forthwith” select a Third Surveyor, the Agreed Surveyor. All appointments must be in writing. The duty of the surveyors is to resolve disputes impartially, whenever possible. The appointment of a surveyor is personal to him, and not to the firm where he is employed. The appointment in every case cannot be rescinded which prevents the owner from dismissing their surveyor.

If either party to the dispute refuses to appoint a surveyor under subsection (1)(b) or neglects to appoint a surveyor under (1)(b) for a period of ten days beginning with the day upon which the other party serves a request on him, the other party may make the appointment on his behalf.

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