Matthew Hearsum, Partner in our Dispute Resolution team and a specialist in Party Wall and Basement extension disputes was recently asked to advise whether an email from an adjoining owner’s solicitor could be a valid letter of appointment for the purposes of the Party Wall etc Act 1996. It may surprise some surveyors that such appointments can be valid.
The starting position is sub-section 10(2) of the 1996 Act which sets out how appointments made be made: “All appointments and selections made under this section shall be in writing and shall not be rescinded by either party.”
The first point to bear in mind is that there is no strict legal requirement for the letter of appointment to be signed by or on behalf of the appointing owner. Sub-section 10(2) requires only that the appointment be made “in writing”, not “signed writing”.
The phrase “writing” has a wide meaning, and is not limited to traditional ink on paper; the Interpretation Act 1978 defined “writing” as including “typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly.” This is potentially broad enough to include emails or possibly even instant messaging services.
The second point is that the wording of the 1996 Act does not expressly require the “writing” to be that of the owner. Subject to the meeting the requirements for a valid agency, a valid appointment could be made by another person on the instruction of the owner or with their authority.
Appointments being made on behalf of others under the 1996 Act is not at all unknown; such appointments are, for example, permitted by sub-sections (4) and (5) of Section 10. It is also a common for letters of to contain express statements authorising a surveyor to sign, send and receive documents on behalf of their appointing owners. Whether a person may appoint a surveyor on behalf of another will depend on whether they a relationship of agency exists between the owner(s) and the person making the appointment. “Agency” (in its strict legal sense) describes a situation where one person, the agent, has the power to create, change or terminate the legal relations of another, the principal.
A relationship of agency may be created in many ways. For example, sub-sections 10(4) and (5) create a statutory agency under which one owner may appoint a surveyor on behalf of another. A relationship of agency is commonly created in writing (as with a surveyor’s letter of appointment) but may also be created orally, even where acts of the agent were required to be in writing; see, for example, McLaughlin v Duffill  EWCA Civ 1627 where the Court of Appeal held that authority to sign a contract for the sale of land on behalf of its owner could be given orally, and did not have to be in writing.
That is not to say that it is nonetheless a good idea for letters of appointment to be signed by (or on behalf of) appointing owners, or agency agreements be recorded in writing. This remains best practice. However, whilst they are best practice, they are not legal requirement for a valid appointment.
This means that, for example, an email from a husband on behalf of a wife, or a solicitor or accountant on behalf of their client, could be a valid appointment, provided that the agent making the appointment had authority to do so on behalf of their principal, and the appointment of the surveyor is in writing.