Property Negligence Claims
Property Negligence Unit
Occasionally referred to as "Real Estate" litigation, Applebys Property Negligence Unit was set up in response to customer demand for a team that covered every aspect of property ownership. It was clear, from the feedback we received from our customers that there was a huge variation in the legal services required by land and property owners and that these services were then being met in a somewhat piecemeal fashion by firms that provided departmental cover for issues such as Landlord and Tenant services but for instance had no Professional Negligence, or High Court litigation experience. Other firms that offered Conveyancing services frequently had no Construction dispute experience or did not offer No Win No Fee Funding.
At Applebys we are fortunate to be able to draw on the resources of qualified Solicitors who have backgrounds in various property related actions and so we were able to pool these resources in order to provide legal support for those clients who wished to bring technical claims against Surveyors and or Architects as well as those more straightforward actions against Conveyancers etc.
We also act in Construction Disputes of all sizes as well as being able to make High Court Applications for Injunctions (rights to light issues) and obtain possession orders to evict squatters from property or to dismantle illegal traveller sites set up on development land or commercial premises. We can assist in planning disputes or boundary actions and we have extensive alternative dispute (Mediation and Arbitration) skills to complement our County and High Court Litigation practices.
As a consequence of the strong customer needs driving our group we have a very busy team with instructions flowing daily from a wide base of property developers and individuals seeking redress. We maintain a highly professional but deliberately open and friendly approach to new instructions and we are always prepared to listen and discuss your action no matter how small or large.
Domestic property ownership usually highlights two areas of potential exposure to professional services and both of these revolve around the issue of property purchase. These are, of course, the Solicitors who convey the property from one owner to another and the Surveyors who are instructed to inspect and value those properties. Fortunately, the vast majority of property conveyance transactions move from title investigation to exchange of contracts and completion without difficulty or issue, however, with so many daily transactions, mistakes in the conveyance are inevitable.
We at Applebys, have considerable experience in such claims and we are fully aware of the pitfalls of this type of litigation. If executed properly these matters usually are among the most rapid to progress and bring to conclusion, as long, of course, that the Defendant acts reasonably and sensibly over fault.
The use of an Architect for domestic property owners is not reserved to the ambitious self-homebuilder or extender any more. Architects are increasingly the weapon of choice for planning applications and listed buildings renovation or modernisation. In fact with regard to listed building grants and disablement adaptations, frequently the project can only go ahead with an experienced Architect at the helm or at least significantly involved. We at Applebys applaud this. Without question, we have found Architects to be among the best trained, most disciplined and most committed professionals when it comes to the provision of a high quality service. They are the group best placed to draft separate plans for building regulation, specification and planning approval and in our experience, they understand the local development plans better than anyone, including, often, the local authorities who set the agenda for such plans.
Often it is the Architect in any project who is the only one focused on motivations or objectives and surely this is the purpose behind any build? Without Architectural professionals, projects often flail about from one decision to the next and consequently lose time and money, simply because the direction of the project doesn’t exist. These rudderless builds are often the vessels that run aground.
Of course mistakes can be made by anyone and there is room for a bad apple in every barrel. If you are or have been the victim of poor architectural advice, planning, works supervision or specification errors then we can assist. We have acted in numerous mediations and litigation in the Technology and Construction Courts against Architects and we know the responsibilities imposed on them by their professional obligations. It is often not even fatal to such actions that the contractual arrangements between the parties are poor. Professional service standards and the implied duties of such professionals still govern the conduct of professions such as these, even if the commercial or contractual arrangements are fragmentary.
Issues surrounding Surveyors claims have been dominated in recent years by poor valuation services. These actions have typically been brought by those Solicitors that subscribe to the “bulk marketing” services of claim management companies, at Applebys Property Negligence Unit (PNU), we select our cases carefully, we don’t run speculative claims and we don’t entertain third party “referrals”.
Whilst these valuation type claims are certainly conceivable, the variation in value of the property has to be a very substantial percentage of purchase price in order to satisfy the Courts. The vagaries of the marketplace often means that a viable defence can be constructed by the Surveyors Defence team from that market uncertainty which existed at the time of valuation even evidence of rising market provides evidence of volatility even if that direction of the market is favourable. Of course there are always exceptions to this rule and if you feel that your property valuation is such an exception then get in touch. A preferable action, though, is one centred on poor advice or negligent supervision of works.
Surveyors acting as project managers (in domestic or commercial projects) have onerous responsibilities. Materials in works must not only be found which are competitively priced, they must be to appropriate specifications and tolerances. The temptation to downgrade materials that are not visible in the final build or to cut corners in construction in order to ensure a timely completion are not routes that a competent Surveyor should embark upon.
Similarly, if there are outstanding structural decisions then those decisions should be made and or supported by appropriate calculations or consultations with Architects or Structural Engineers. It is not sufficient for a Surveyor to simply press on regardless with a solution that “looks right” but has no technical support. If tenders are to be completed on behalf of the owner for subcontractors and this tender process is completed by the Surveyor then again the burden of ensuring that stable and efficient subcontractors who are appropriately qualified and indemnified falls on the Surveyor and it is that Surveyors indemnity that will be called upon if things go wrong. It is not sufficient to simply hire the cheapest builder that provides a quote.
In a related issue it is frequently the case that, the build quality of any construction project is significantly dependent upon the level of supervision that is afforded by a Surveyor acting as a project manager and to this end whilst it is normal practice to point to a culpable builder for poor workmanship if the Surveyor has performed little more than an occasional site visit then concerns over issues greater than “snagging” again to some degree will fall into the realm of the Surveyors indemnity.
In larger builds or technically complex builds the opinion of Structural Engineers are frequently sought. Load bearing tolerances and issues over material strengths and trade-off between durability, costs and appropriateness should really be reserved for such experts. There are few firms offering these engineering services in the UK and the ones that are successful compete with firms whose credibility is often less obvious. Again, expert evidence and a meticulous approach to such actions are crucial if the matter is to get off the ground. Early legal intervention is recommended and the success rate of these claims is not high. It is imperative if you have a structural claim in the making then seek representation.
Unqualified Advisors and "Para" Experts
There is no substitute for a trained and qualified expert. Whilst it is true that professional negligence can occur in the services of anyone, the truth is that claims against the above listed experts are very rare and when they do happen you as the client have the advantage of a professional indemnity insurance policy and a regulatory body with that maintains post qualification professional development and training and that can apply a disciplinary procedure to its members who have overstepped the mark professionally or ethically.
If however, you rely upon an unqualified amateur whose so called expertise rests in years of “getting it wrong” then it is highly likely that you are heading to a position where no matter how strong your claim, the issue will be not proving negligence but recovering the money you have spent on a worthless service. Whilst it is true that there are many good and useful amateurs who for whatever reason, never undertook formal qualification they are on the whole a group to which any approaches should be cautious.
These “para experts” exist as a shadow on every professional qualification you can imagine. They frequently employ the use of very similar language to qualified professionals and you have to scrutinise them carefully to see the differences. They are usually careful to avoid using protected terms or protected titles. Not everyone can claim the title “Chartered Surveyor” or “Architect” or even “Solicitor” for that matter. If in doubt ask to see professional accreditation or insurance before giving your instructions to anyone and again, rest assured, no real professional would ever be embarrassed about showing you their qualifications or indemnity and in most cases this can be quickly determined online at the appropriate institutional website.
There are builders and there are builders. Builder is not a protected title and anyone who can mix cement (or not as the case may be) can claim the trade as their own. There are institutions that can be checked for membership and there are established firms with years of trading and numerous examples of former projects.
There are also, men in vans with no trading addresses, no vat numbers and who will encourage cash advances (for material purchases of course) and then disappear from site forever. Claims against builders are similar to claims against “para experts” they frequently just don’t have assets to pay your claim and they literally disappear into the night the moment the Court papers appear or the flow of money is stunted. Talk to us by all means if you have such a claim but remember, if the claim is below £15,000.00 then we probably will not be able to act on a no win no fee basis and if your builder is not an established trading platform with liability insurance then the likelihood is you will be wasting even more money trying to retrieve your position. Our best advice is, let your Surveyor or Architect tender for a builder and let them make the decision unfettered by “the cheapest quote”, let them supervise and ensure that your payments are staged and signed off by your project manager.
In addition to actions against professionals, we maintain a range of services to assist property owners. We can make High Court Injunctions, we can represent at tribunals, we can evict tenants or squatters, we can enforce judgments via the High Court Sheriffs. If you have issues with illegal traveller sites on development land we can obtain orders for you and have the sites deconstructed. We can make alterations to registration entries. We can advise on border disputes. Frequently we can do all of this on fixed fees and sometimes we can even do it without fees.
Regardless of what situation you find yourself in call us, we offer a sympathetic consultation and it’s free. Why wouldn’t you call, even if we cannot help you directly we can perhaps assist you with some advice in the short term.
If we can assist then it is possible that your action can be run on a no win no fee agreement or even perhaps an agreement where we limit our fees to a percentage of the damages. There are many options available and we can discuss them all.