Alistair Redler FRICS Senior partner at Delva Patman

Alistair Redler FRICS – Manor Road Senior Partner Delva Patman

During the past 20 years since the Act was invoked, it has been somewhat surprising that my path did not cross with Mr. Alistair Redler (Delva Patman Redler) in either a professional or social capacity until late 2014.  Yet since that first meeting our paths have crossed on three separate party wall matters being Bibizadeh v Dodosh, Mohamed v Takhar, and Hart v Spencer.

First experience

In Bibizadeh v Dodosh Mr. Redler was purported to have been appointed by the Bibizadeh’s as their party wall surveyor.  Despite the fact that a s.10(4) notice had been validly served upon the Bibizadeh’s and their refusal to appoint a surveyor, (perhaps driven by the misconceived contention of their solicitors) as noted in para 38 of the judgement “my clients are not prepared to give the undertakings you seek, nor serve a new notice, nor appoint a party wall surveyor”.  It should come as no surprise to anyone that I executed the statutory procedures and appointed a surveyor on their behalf.

As HHJ Bailey observes in his Judgment, they were content with this arrangement and the replacement surveyor engaged with them and Mr. Antino in order to move matters forward.  Then we received a document purporting to be a letter of appointment for Mr. Redler signed, dated after the appointment of the s.10(4) surveyor. The Bibizadehs and Indeed Mr. Redler were made aware again of the s10(4) appointment.

Undeterred, the Bibizadeh’s maintained that Mr. Redler was their surveyor and did not engage with the replacement surveyor.  Those of you that are familiar with the statutory procedures would know that Mr. Redler did not have any statutory position as he did not form part of the Tribunal.
 

Not unsurprisingly, the matter ended up in Court and before HHJ Bailey, where it required the Learned Judge to state at para 79, “Mr. Stevens appointment was valid”.  Thus Mr. Redler appointment was invalid.  

In December 2014 I joined with the s.10(4) surveyor and produced an Award, that Award was subsequently appealed, the appeal failed and the Bibizadeh’s were exposed to considerable legal costs of many thousands of pounds.

Second experience

My next experience of Mr. Redler was just over a year later in the Mohamed v Takhar matter, where the Mohamed’s had appointed Mr. Michael Osborn as the building owner’s surveyor and I had been appointed as the adjoining owner’s surveyor.  The third surveyor was jointly selected and the tribunal completed. There were significant technical defects in the building owners design of a basement construction of epic proportions, but nonetheless with skillful assistance of the adjoining owner’s engineers, the building owner’s engineers were able to be directed and advised as to what would be structurally stable and acceptable.

Mr. Osborn could not or more appropriately would not proactively engage with Mr. Antino to agree his fees.  Despite Mr. Osborn’s reluctance, Mr. Antino had suggested and indeed encouraged Mr. Osborn to at least sign and serve the Parent Award absent of any fees so that the building owners could commence their works.

Then up pops Mr. Redler’s name when the building owner sent an email stating that he had instructed Mr. Redler, now those of you that are familiar with the Act understand the principle of s.10(2).  A letter of appointment claiming Mr. Redler was now the building owner’s surveyor was produced. The only circumstances that could allow Mr. Redler to be appointed was for Mr. Osborn to deem himself incapable under s.10(5), which of course he had not done so at the time that the Building owners email was circulated claiming to have appointed Mr. Redler. Mr. Osbourn was plainly  not incapacitated.

Surprisingly, that is exactly what Mr. Osborn did on the day after Mr. Redler’s letter of appointment was dated and signed by the building owner. WHAT A COINCIDENCE THE BUILDING OWNER WAS ABLE TO PREDICT AN ALLEGED INCAPACITY OR WAS HE !!!!!!

It occurred to me that Mr. Osborn’s purported incapacity was not based on genuine grounds, and a request for an explanation regarding the mysterious incapacity was requested. Mr. Osborn was reluctant to give any indication of what the purported incapacity was.  

Interestingly in the Bibizadeh case HHJ Bailey At para 78 “plainly the formalities of the Act have to be complied with, and complied with strictly”.  At para 84 Judge Bailey continues “it is agreed at the Bar, and certainly it is my view, that the expression becomes or deems himself incapable of acting is to be interpreted more widely than referring to an incapability by way of physical or mental disability but there is no guidance in the Act as to what constitutes incapability for the purpose of s.10(5)”.

Whilst it is not a requirement that private and personal information is disclosed, it is reasonable that an explanation should be given, i.e. retirement, moving away from the area etc. 

Again, with reference to the Bibizadeh case in which Mr. Redler was held not to be validly appointed, Counsel for the Bibizadeh’s gave an explanation as to what would be the grounds for a deemed incapacity.

At para 85 Judge Bailey records “Miss Holmes submits that for a surveyor to deem himself incapable of acting does require a proper basis”, HHJ Bailey response is “I entirely agree…..” It was therefore not unreasonable of Mr. Antino to make enquiries as to the reasonable conduct and grounds for Mr. Osborn’s purported incapacity.  Mr. Antino was quite justified in being cynical of this purported incapacity, the timing of the purported appointment of Mr. Redler.  in litigation were The Mohamed’s were represented by Mr. Nicholas Isaac of Counsel in his book at para 7-24 “appointments shall not be rescinded observe the parties cannot rescind appointments under s.10 is regularly a source of dismay to appointing owners who, for whatever reason, have fallen out with their surveyors.  However, it is clear that appointments (and selections) under s.10 are indeed irrevocable …..”

Against this background it is difficult to understand why Mr. Redler believed he was validly appointed

It is notable that with some reluctance by email dated 23.09.15 at 10:46 that Mr. Mike Osborn wrote “with reference to previous correspondence there is no obligation to give any reason to deeming myself incapable of acting.  Notwithstanding this and to obviate any further unnecessary correspondence I set out my reasons below.”

 “I am out of the country from the 30th of this month for three weeks and on my return, I will have to go to Spain to finalize some medical treatment.  In addition, my wife will be having major operation before Christmas.  In the run up to Christmas I shall therefore be out of circulation for approximately 7 -8 weeks”.

The important point here to note is that by Mr. Osborn’s own hand his incapacity did not bite until the 30th September “I am out of the country from the 30th of this month….” Mr. Antino accepted this as a genuine ground to deem oneself incapable of acting,

However, Mr. Osborn’s was available to carry on with his statutory duties for a further 7 days, Mr. Antino served a request under s.10(6) dated 23.09.15 stating “I am sympathetic to your situation; however, you have been and remain available to continue with your statutory duties at the present time.  Accordingly, I now request you join with me and reach agreement of my fees which for the avoidance of doubt are as follows….”

It is perhaps somewhat bizarre to note that the deemed incapacity was first notified and served on 07.09.15 by Mr. Osborn some 23 days before his intended departure for Spain without some coincidence actually 1 day prior to the purported appointment of Mr. Redler dated the 08.09.15 by the Mohamed’s.

It is clear to see that Mr. Osborn had sufficient time to deal with the outstanding matters but chose not to.  A full explanation of that has never been given by Mr. Osborn. Ironically, and without any coincidence on the 23.09.15 an email from Mr. Redler was received at 12:27 in the following terms:

“Dear Mr. Antino, I note your letter and continue to disagree with you.  You will now have received an email from Mike Osborn giving his reasons for standing down, so I hope that you will now accept that.  At that point, do write to me as the appointed surveyor.”

Mr. Antino responded by email on the 23.09.15 at 15:20 in the following terms: “Dear Mr. Redler, in response to your email of today at 12:27 I do not agree with your contention and further I do not accept that Mr. Osborn has satisfied the grounds under s.10(5) and therefore remains the validly appointed surveyor for your clients the building owners.” (emphasis added).

Mr. Antino received a bounce back email from Mr. Redler at 23:09.15 at 15:21, which advised in the following terms: “I am out of the office until Wednesday 30th September but will be picking up emails intermittently.  If matters were urgent please contact my office on 020 7936 3668.”

So here we have Mr. Osborn deeming himself incapable some 23 days prior to the alleged/purported incapacity biting on the 30th September, and ironically Mr. Redler was himself by virtue of his email of 23.09.15 at 15:21 also incapable of acting until 30.09.15.

Mr. Antino proceeded in accordance with the s.10(6) request and prepared and served an ex-parte Award dealing with those costs.  The Award was not appealed, but a claim by the building owners that they did not receive the Award was made.  An alarmingly similarity with the defense put forward by Mr. Frame in the Mills v Sell and Mills v Savage cases.  Unfortunately, the Mohamed appeal has never been heard because, (and this will be dealt with in a further substantive blog), the building owners and adjoining owners entered into mediation to resolve outstanding matters.

Those matters which do have a relevance to this blog were discussed in open court on 14.11.17 and 19.12.17 and are now in the public domain and not covered by any non-disclosure clause.  At a hearing on the 14.11.17. Mr. Antino expressed in clear terms his concern about the behavior of Mr. Redler who made an untrue statement about the existence of certain drawings, method statements etc. It was later discovered that that in fact did exist.  That led to an adjudication where Mr. Daniel Getty of Hardwicke chambers determined that the information requested by Mr. Antino from Mr. Redler should have been disclosed under the terms of the Osbourne/Antino award and determined that the Mohammed’s should pay the takhers £50,000 compensation plus costs.

At the hearing of 14.11.17 Mr. Antino acting as Counsel raised his concern about the purported appointment of Mr. Redler and whether there were substantial grounds and evidence proving that Mr. Osborn was in fact not incapacitated until the 30th September.

In HHJ Bailey’s Judgement (Mohamed v Antino & Takhar 2017) Judge Bailey records in his judgement at paragraph 4 “shortly thereafter, on 09.09.15, Mr. Osborn declared himself incapable of acting, and the building owners appointed Mr. Redler in his place.  Whether Mr. Redler’s appointment as the building owner’s surveyor was effective from 09.09.15, when it was made, or from 30.09.15, as Mr. Antino (with some justification) ………………….”

Plainly even though that particular issue was not a matter in relation to the Mohamed v Antino & Stevens case, HHJ Bailey felt it appropriate to make the observation that Mr. Antino’s concerns were justified.

So, in a nutshell this was now the second time that there were justified grounds to confirm that Mr. Redler was not the appointed surveyor as purported to be.  Given Mr. Redler’s reputation, it is difficult to understand how a professional of his experience knowledge and involvement with the Party Wall Act could not understand the basic principles which must be fundamental to the proper appointment of a tribunal of surveyors.

It is also important to note that immediately on the 30.09.15, Mr. Antino was prepared to and in fact did engage with Mr. Redler with further outstanding party wall matters.  It is disappointing but important to note that the administration of the party wall matters following the Parent Award agreed and served by Mr. Antino and Mr. Osborn in the first instance were not adhered to and this led to considerable issues and concerns which caused circa £225,000 of damage to the adjoining owners property of which Mr. Redler assisted with a QS calculated the value to be £2,000. 

 Third experience of Mr. Redler

It is against the aforementioned background that in 2017 Mr Redler’s path crossed for the third (hopefully the final) time in a party wall matter. A In this case (Hart v Spencer) Mr Antino was the adjoining owner’s surveyor for Mrs. Hart, a Mr Johnson was the surveyor for the building owner.

The property was located in Loughton, Essex, Mr Johnson is located in Chester.  A third surveyor selection was never reached and a referral by Mr Johnson to the local authority was made and yes you guessed it, Mr Redler was selected.

One would have thought against the aforementioned background of Bibizadeh and the Mohamed cases, that Mr Redler might have decided that accepting this selection could create tensions and concerns with a perceived conflict of interest, undeterred he indeed accepted the selection. 

Prior to any Award being in place the building owner commenced his notifiable excavations, Mr Antino was called out to record the evidence so that an injunction could be obtained.  During that inspection Mr Spencer assaulted Mr Antino causing damage for which he was arrested. Mr. Spencer admitted the charge of criminal damage and received a police caution and ordered to pay damages.

Mr Redler then subsequently having been approached by Mr Johnson took fees directly from the building owner and had a site meeting.  Mr Redler had notified Mr Antino by email, despite the fact that Mr Antino had expressly rejected as was his right, electronic communications as a means of service of documents etc. It is difficult to understand Mr. Redler’s approach given his position in the P&T and the current addition of the green book which recognizes the legal rights not to exchange documents by email.  Perhaps, Mr. Redler’s had a reason for only giving notification of the meeting within 24 hours, but t none has ever been given. however, clearly this is another irregularity that raises concern with Mr. Redler’s conduct and application of the Act.

The discussion at that meeting was never disclosed by way of any handwritten notes by Mr Redler, he appeared to be engaging directly with the building owner and his surveyor and again it is therefore not surprising that Mr Antino has some reservations regarding the administration of statutory procedures.

Conclusion

There are a number of consistencies and similarities between the Bibizadeh’s, Mohamed’s and Spencer’s, the building owners had all breached the party wall procedures in one way or another, they sought to then antagonize and complicate matters by simply refusing to adhere to the party wall procedures.

Unfortunately, the building owners simply proceeded to abuse the statutory legislation to the effect that the Act is now in Mr Antino’s opinion, becoming an unworkable piece of legislation, and it exposes adjoining owners to abuse, trespass, damage, financial exposure the likes of which should never ever occur.

 

Posted on January 9, 2018 .

Local authority appointing officer fails to act correctly under s.10(8)

PRIVATE & CONFIDENTIAL
Mr P. Antino BSc (Hons) MSc MRICS CIOB
A.P.A Property Services Ltd
145 New London Road
Chelmsford
Essex
CM2 0QT


BY EMAIL ONLY: enquiries@apaproperty.com
Your ref: C994a/PA/NB


Our ref: REG0000138725 – please quote this reference on all correspondence
8 January 2018


Dear Mr Antino

Re: Complaint regarding Mr ???????????? MRICS

I write further to previous correspondence regarding your complaint against the above individual.

Thank you for bringing this matter to our attention. RICS takes its regulatory role seriously and
would be unable to discharge this role fully without information being brought to its attention by members of the public and Members of RICS. RICS will investigate complaints to ascertain whether there has been a breach of RICS’ Rules. Not every breach will result in disciplinary action being taken as RICS takes a risk based approach to regulation and applies the principle of proportionality. 

An investigation has been conducted to establish whether there is evidence of a potential breach of RICS’ Rules of Conduct for Members and this investigation has now concluded.

I have considered your letter, dated 12 July 2017 (with accompanying enclosures), and the
response from Mr ?????????, with supporting information.

My understanding of your complaint is that Mr ????????, whose role was the Appointing Officer (selected Mr ?????? as Third Surveyor), failed to request your contact details and/or  contact you in relation to this selection, and that he selected Mr ???? without inquiring with Mr ??? as to which Surveyors had been included within the list of proposed Third Surveyors and/or whether any of these had been rejected by you.

It is also my understanding that Mr ?????? failed to respond to your correspondence dated 13 June 2017 and 4 July 2017, and that he failed to provide the Complaints Procedure when requested).

We have considered Mr ???? response; his view was that the Party Wall Act does not expressly
require the Appointing Officer to contact both Surveyors, and he had received advice from other Party Wall Surveyors in this regard. Further, the Third Surveyor (Mr ?????) confirmed he would contact all parties upon appointment. Mr ????? further advised that he had acted in good faith.

We have also been advised that you submitted a complaint to ??????? District Council, who considered your complaint and that this was not upheld.

The Head of Regulation has decided that there is no realistic prospect of establishing that Mr ?????? is liable for disciplinary action.

RICS will not, therefore, be proceeding with disciplinary action against Mr Dixon and I am now
closing my file.

However, we have provided advice to Mr ????? regarding the communication of the selection of Third Surveyors to both Surveyors (for the Adjoining Owner(s) and for the Building Owner(s)); i.e. both Surveyors must be notified, and if the contact details of one of the Surveyors is unknown, the details should be sought from the other Surveyor. In addition, we have provided advice to Mr?????? regarding responding to correspondence received.

Thank you for contacting RICS Regulation and assisting us in enhancing the risk profiling of our Members.

Yours sincerely
Miss ??????????? BSc(Hons) GDip PGDip
Lead Investigator
RICS Regulation
t: +44 (0)2476 868559
e: ?????????y@rics.org

Posted on January 8, 2018 .

J P Ferguson & F E Ferguson v A G Lloyd-Baker (2017) Central London County Court

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along  invalid.  

Mr & Mrs Ferguson (the appellants) filed an appeal at the Central London County Court challenging an Award, served by Mr Mark Behan appointed by Mr Lloyd-Baker and Mr Simon Price, the third surveyor selected under s.10(8) of the Party Wall etc. Act 1996.

Mr Philip Antino was Mr & Mrs Ferguson’s surveyor.  Mr Lloyd-Baker wanted to construct a basement beneath his end of terrace house which adjoined the appellant’s property and other notifiable works. Mr Mark Behan prepared and served notices for the basement which surprisingly, incorporated special foundations extending across the boundary line.

Mr Antino experienced considerable difficulties with Mr Behan in selecting a third surveyor.  Mr Behan insisted that it should be someone from his list of preferred surveyors.   Included in that list was Mr Simon Price, a chartered surveyor and director of the Faculty of Party Wall Surveyors of which Mr Behan is also a member. Mr Behan refused to accept anyone unless it was someone he suggested. Regrettably there was no agreement on the selection of the third surveyor and Mr Behan approached the local authority who subsequently selected Mr Simon Price under s10(8).

Mr Antino’s primary concern was the use of special foundations. the Fergusons exercised their section 7(4) veto. To his credit Mr Behan immediately accepted that the works included special foundations. Although it is not clear why he chose not to disclose that fact in his notices! Had he done so openly, the Fergusons may well have consented to the works, but clearly the omission of this important point caused the Fergusons concern, and justifiably so.  

The proposed works incorporated reinforced concrete walls tied to the floor slab, as such, creating a ‘box’ construction. The integrity of the box to support the imposed loads of the building above and the lateral loads form the adjacent soil was dependent on the ‘box’ design. The building owner’s engineers were asked to redesign the basement to avoid special foundations. They simply introduced concrete rails beneath the basement box floor slab, and ignored the special foundation beneath the party fence wall.  Mr Behan argued that the special foundations had been removed and therefore the award should be served. Mr Antino did not accept this contention. 

Mr Behan was in direct correspondence with Mr Simon Price who wrote to Mr Antino stating that the proposed works did not include special foundations.  Mr Antino rejected this contention explaining that there were special foundations and that Mr & Mrs Ferguson had exercised their right under s.7(4) and in the absence of any written consent, an Award could not authorise special foundations on the adjoining owners land.

Mr Price and Mr Behan, ignored Mr Antino’s observations and produced an award, leaving Mr Antino out of the statutory procedures. It took some 7/8 months for Mr Simon Price and Mr Mark Behan to eventually serve an Award.  Mr Antino advised Mr & Mrs Ferguson that the Award was ultra viries, because it sought to authorise special foundations across the boundary line without their written consent was therefore unlawful.

Mr & Mrs Ferguson filed an appeal within the 14-day statutory period, and Mr Lloyd-Baker having taken legal advice agreed to withdrew the Award and agree to pay Mr & Mrs Ferguson’s substantial legal costs. 

In august 2017 Mr Behan served new notices with a revised scheme removing special foundations from the proposed works. Mr. Antino challenged the validity of the notices as they did not comply with section 6(6). Mr Behan accepted Mr Antino’s points and then in October served new notices. The surveyors were unable to agree a third surveyor and a section 10(8) selection was made but not Mr Price. An award has yet to be agreed.

What was disappointing from the first appealed award is that Mr Simon Price did not engage fully with Mr Antino under section 10(11), despite Mr Antino’s numerous request to be included in the award process. Mr Behan and Mr Price chose not to include Mr Antino. 

This is particularly frustrating and disappointing because Mr Simon Price had a duty as the Third Surveyor to remain neutral and impartial. For reasons that are not clear, he simply joined with Mr Behan and simply pushed ahead (to the detriment of Mr Lloyd-baker) ignoring all of Mr Antino’s advice, concerns and/or observations that the award based on the scheme could not proceed as set out in the drawings attached to the notices, because they sought to legalise works which could not be executed without the Ferguson’s agreement.  Mr Price and Mr Behan simply failed to understand what constituted a special foundation.

Posted on January 4, 2018 .

Adjudication-v- Litigation

 The following case demonstrates the benefits of avoiding litigation at all costs

if the case had gone thought the traditional route say with counsel and solicitors appointed by both sides and then the usual disclosure, case management hearings, and hearing before a judge the parties would have been exposed to several years of delay and costs estimated to be £200,000 plus

Mr & Mrs E Husein v Mr S Dassu (2107) Adjudication, N. A. Dight

Philip Antino acted for the respondent (Dassu) in this building dispute. The referring party (Husein)  engaged the respondent to undertake significant building works to their property with a final contract sum of £138,004 plus vat. A dispute arose, the respondent made allegations of poor workmanship alluded to in a report prepared by Mr Campbell of Land Commercial Chartered Surveyors.

N.A .Dight  was the adjudictaor appointed to resolve the dispute, recorded “I agree with Mr Antino’s opinion that Mr Campbells report is akin to a snagging report rather than an experts report identifying by factual evidence and expert opinion alleged defects” Mr Antino’s report had identified minor snagging items and incomplete works estimated at  £6876 by way of abatement. The referring party rejected this opinion and sought £100,000. The adjudicator dismissed the claim accepting again Mr Antino’s evidence and awarded after adjustments the referring party pay to the respondent a final payment of £15,078.00. in addition the referring party were ordered to pay theadjudicators costs of paid the costs£12,602.88.  From anticipating a windfall of £100,000, the Referring party (Hussein) ended up paying £28,000 plus their own costs.

Posted on September 26, 2017 .

ETHICS – A DISAPPEARING PRINCIPLE

 

ETHICS – A DISAPPEARING PRINCIPLE

As a Party Wall Surveyor, I have noted a considerable decline in the standards and ethics being adopted and implemented by various Party Wall surveyors and indeed the judiciary.  Indeed, some of the more prolific violators are those which are wrongly held within the Party Wall community as “respected eminent Party Wall surveyors”.

The following scenarios are true. I have withheld the surveyor’s identity, because they have been reported to their professional body (RICS) and are currently facing investigation.

Case number 1

As the Adjoining Owners surveyor (“AOS”) and post service of the Parent Award, the Building Owner’s surveyor (“BOS1”) was replaced by BOS2 at the request of the BO on spurious grounds of incapacity.  The BOS1 then wrongly deemed himself incapable of acting.  This approach by BOS2 is a standard tactic that he uses to achieve an appointment.  The difficulties that flowed after BOS2 involvement are substantial.  There were breaches of the parent Award, blatant refusals by BOS to engage with and follow the award. BOS2 refused to allow the AOS onto site to carry out inspections as explicitly set out within the Award. BOS2 encouraged the builders to ignore monitoringlevels within the award. As a consequence, damage was caused to the Adjoining Owner’s property in the region of £250,000 plus vat.

Fortunately, as the Adjoining Owner’s surveyor, I had advised the Adjoining Owners to request security of expenses and the agreement reached between AOS and BOS 1 was such that £150,000 was held in an escrow account and to this date, remains secured as there are outstanding matters.

As the AOS, I wrote to BOS2 with a simple request as follows:

I would be grateful if you could please provide the drawings, specifications, method statements for the additional notifiable works now being undertaken by the Building Owner’s.

And received the following response:

Dear Mr Antino there are no drawings specifications method statement for these works (emphasis added)

A few days later, I received a call from the AO’s solicitor advising me that he had received an email that he had currently sent to the Law Society to seek advice on whether he could disclose the email to me.  He was unable to explain the content of the email until he had a response.

The Law Society confirmed that the email, sent by BOS2 to the BO’s solicitor, BO and his Barrister was not considered legal privilege, and could be disclosed.

The BOS had, sent the following email:

Hi ?? (solicitor)

 Have you seen Antino’s latest request, if we give him this information he will spot the mistakes. 

 In the BOS indecent haste to withhold the documents that plainly existed the BOS2 had inadvertently included the AO’s solicitor, in the email chain.

The game was up, BOS2 had by his own impetuous and dishonest conduct exposed himself to be a dishonest surveyor. 

The alledged dishonesty flows from:

  1. BOS2 refused to acknowledge documentation that existed and not working impartially,

  2. Took advice from a solicitor, which is by definition, conspiracy. 

  3. BOS 2 gave false statement as to the existence of relevant and appropriate documents

BOS2 conduct was clearly a gross error of negligence, dishonesty and breached just about every ethical rule that the RICS professional body seeks to impose members.

The fallout was such that the BO’s solicitor cried “stop, don’t give this email to Antino, it is legal privilege”.  When advised by the AO’s solicitor that the email was not covered by legal privilege the panic started to set in within the BO’s camp.

The parties agreed that they would be bound by an independent mediator’s decision and indeed, so confident in their arrogance that they were right, the BO’s team suggested that if they were wrong, they would agree to pay £50,000 plus costs to the Adjoining Owner.

As a consequence of BOS 2’s conduct, the Building Owner is now circa £100,000 out of pocket.

RICS have now confirmed that BOS2 conduct does NOT breach RICS Rules on ethics. 

 

Case number 2

In this matter I was the Adjoining Owner’s surveyor (AOS).  The BOS had prepared and served notices for a basement.  In response to the notices, it was pointed out that these incorporated special foundations the AO, adopted Section 7(4) veto.  The BOS, immediately accepted that the scheme did contain special foundations.

Now you might think that there is nothing strange in that, but the issue here is that when a notice is served, the surveyor has a duty to provide all of the relevant information to the Adjoining Owners in order for them to be able to make an informed decision.  Had they consented or decided to accept BOS as an agreed surveyor (AS), the question had to be raised as to whether or not the BOS would have actually advised the AO of their rights to exercise a Section 7(4) veto.

The BOS’s response was that he would arrange for the drawings to be changed, by which in fairness, he meant that the Building Owner’s architect/engineer would remove the special foundations.  All that had happened is that the engineer inserted 2 concrete rails beneath the proposed basement slab.  This, in my view, did not remove the special foundations and/or the Section 7(4) veto.

There was difficulty in agreeing the selection of the Third Surveyor (TOS), the BOS provided a list of names, one of which included BOS 2 referred to in case 1 above.  Alternative names were put forward by myself which were equally rejected, ultimately, the BOS adopted Section 10(8), but chose not to explain the difficulties regarding those names put forward.  Low and behold, one of the names on the BOS’s rejected list was selected as the Third Surveyor.

On receipt of the Third Surveyor’s letter confirming his willingness to accept the selection, the Third Surveyor made an unsolicited statement as follows:

Dear Mr Antino

 I do not consider the proposed scheme falls within the special foundations criteria and if you do not agree to sign the Award, I shall proceed with BOS and produce an Award.

Now, that is most certainly not evidence of a Third Surveyor acting with any degree of impartiality and clearly he had been covertly discussing the matter with BOS.

The BOS and TS then joined together and produced an Award, contrary to all of the advice of myself the scheme still incorporated special foundations.

The Adjoining Owner immediately filed an appeal on the position and advice given by the AOS, and subsequently solicitors and counsel were instructed by the AO.

The BO agreed to set aside the BOS and TS Award and paid the Adjoining Owner’s costs.  Those costs claimed by the Adjoining Owners are circa £20,000.  In addition to which the BO would have to pay his own costs, plus the wasted costs of the BOS, TS and AOS.

The BO has now served notices for a completely different scheme.

 

Posted on September 14, 2017 .

Institue of Party Wall Surveyos meets CABE

The President of CABE meets the CEO of IPWS

On the 9th June David Taylor, President of CABE met with Tony Copeland, the CEO of the Institute of Party Wall Surveyors at their offices.  This is what the President had to say.

The Institute has made a big impact on the professional environment of party wall surveyors since its inception and its growth is on the increase.  David had the pleasure of meeting with Tony and discussing the ambiguity of the Party Wall etc. Act and the current environment of surveying practice.  The need for an ethical practical guide for party wall compliance is, in David’s opinion, long overdue, and he was thrilled that the IPWS has been set up.

The meeting with Tony and his management team was arranged to discuss the collaboration and member connection routes for both organisations.  CABE members are best placed to act in the wide realms of the Party Wall etc. Act and David was pleased to hear that Tony agreed.

Posted on July 5, 2017 .

Hart V Spencer (2017) Injunction Romford County Court

 Hart v Spencer (2017) Injunction Romford County Court for failure to comply with the Party wall Act before HHJ Davies

 In October 2016 Mr Spencer commenced excavation works within 3m of Mrs Hart’s property.  Mr Spencer despite being a self-professed developer had not served any notices under s.6(1) of the Party Wall Act and was asked to stop.  He declined to do so.

He then caused minor damage to Mrs Hart’s boundary wall and was again requested to stop and threatened with an injunction.  He refused, continued causing the collapse of a boundary wall falling onto Mrs Hart’s property.  Mr spencer was threatened with an injunction and his solicitors gave an undertaking not to do any further works until the party wall procedures were in place.

There then followed a period of inactivity until April 2017 when Mr Spencer appointed a surveyor from Cheshire for a project being undertaken in Loughton, Essex.  Mrs Hart having previously appointed Mr Antino to deal with party wall matters.

Discussions/negotiations were under way when on the 9th June Mr Spencer decided to commence piling works for his project.  Overall there was approximately 200 plus piles to be excavated, but he chose to do the 17 or so within 3m and 6m of Mrs Hart’s property and structures therein.

This was contrary to an undertaking being given previously in 2016 not to do any notifiable works until an Award was in place.  On the 9th June Mr Antino was instructed to carry out an urgent inspection to record the on going activities in preparation of an injunction.  Mr Spencer became extremely aggressive threatening and was subsequently arrested and received a police caution for causing criminal damage to Mr Antino’s video and photographic equipment plus ordered to pay compensation for the damage caused.  Mr Spencer was served with a notice of injunction hearing on the 12th June 2017.

Undeterred by this situation, Mr Spencer then on the morning of the 12th June continued with the piles.

Mr Spencer did not attend Romford County Court despite being notified of the hearing, and having  sealed up all of the letter boxes on site.  Mr Antino was instructed to attend late on the 12th June to photograph any further activities that were notifiable following the injunction being served at approximately 4.00pm.  The injunction remains in place until September.

 

 

 

Posted on June 15, 2017 .

Institute of Party Wall Surveyors (IPWS)

Philip Antino FIPWSwas yesterday confirmed as a Fellow of the Institute of Party Wall Surveyors.

For details of this exciting new professional institute go to ipws.co.uk   for members details, information and/or to apply to join

Posted on May 19, 2017 .

Philip Antino on Special Foundations, basements and s7(4) veto

 An Appeal against Special Foundations and the refusal to recognise s.7(4) veto

 J P Ferguson & F E Ferguson v A G Lloyd-Baker (2017) Central London County Court

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along  invalid.  
 

Mr & Mrs Ferguson (the appellants) filed an appeal at the Central London County Court challenging an Award, served by Mr Mark Behan appointed by Mr Lloyd-Baker and Mr Simon Price, the third surveyor selected under s.10(8) of the Party Wall etc. Act 1996.

Mr Philip Antino was Mr & Mrs Ferguson’s surveyor.  Mr Lloyd-Baker wanted to construct a basement beneath his end of terrace house which adjoined the appellant’s property and other notifiable works. Mr Mark Behan prepared and served notices for the basement which surprisingly, incorporated special foundations extending across the boundary line.

Mr Antino experienced considerable difficulties with Mr Mark Behan in selecting a third surveyor.  Mr Mark Behan insisted that it should be someone from his list of preferred surveyors.   Included in that list was Mr Simon Price, a chartered surveyor and director of the Faculty of Party Wall Surveyors of which Mr Mark Behan is also a member.

Mr Antino declined the nominations put forward by Mr Mark Behan and provided alternatives.  Some of who were and/or were not members of the Faculty of Party Wall Surveyors.  Mr Mark Behan refused to accept anyone unless it was someone he suggested.

Regrettably there was no agreement on the selection of the third surveyor and Mr Mark Behan approached the local authority who subsequently selected Mr Simon Price.

Mr Mark Behan had been asked by Mr Antino to notify the local authority of all those names previously submitted by both parties to ensure that they were not included in the selection process, thus avoiding any potential conflict of interest. It appears from Mr Simon Price’s subsequent selection that Mr Mark Behan did not take Mr Antino’s advice.

Mr Antino’s primary concern given that Mr Mark Behan appeared not to understand what a special foundations and or indeed the s.7(4) veto that any selected the third surveyor was both independent and had the appropriate skills, knowledge and experience to be able to deal with special foundations and or indeed the s.7(4) veto.  To Mr Antino’s surprise the local authority selected Mr Simon Price, despite his earlier rejection.

Mr Mark Behan immediately wrote to Mr Simon Price claiming that there were no special foundations and sought his agreement to prepare an award.  Mr Simon Price’s first email to Mr Antino was to suggest wrongly as it transpires, that there were no special foundations in the proposed scheme.  Mr Antino rejected this contention explaining that there were special foundations and that Mr & Mrs Ferguson had exercised their right under s.7(4) and in the absence of any written consent, an Award could not be served, because the Act specifically prohibited such works under s.7(4).

Mr Simon Price and Mr Mark Behan, then proceeded to work together to produce an award, leaving Mr Antino out of the statutory procedures. It took some 7/8 months for Mr Simon Price and Mr Mark Behan to eventually serve an Award.  On receipt of service Mr Antino advised Mr & Mrs Ferguson that the Award was ultra viries because it sought to authorise special foundations across the boundary line and without their written consent was therefore unlawful.

Mr & Mrs Ferguson filed their appeal within the 14 day statutory period, and Mr Lloyd-Baker having taken legal advice agreed to withdrew the Award by consent and agree to pay Mr & Mrs Ferguson’s substantial legal costs in defending the appeal.

The appointed surveyors must act impartially, however, from the first instance, Mr Simon Price did not engage with Mr Antino under section 10(11), despite Mr Antino’s  numerous request to be included in the award process. Mr Mark Behan and Mr Simon Price  chose not to include Mr Antino. This is particularly frustrating and disappointing because Mr Simon Price duty as the Third Surveyor was to remain neutral and impartial. For reasons that are not clear, he simply joined with Mr Mark Behan to serve an invalid Award. They simply pushed ahead (to the detriment of Mr Lloyd-baker) ignoring all of Mr Antino’s advice concerns and/or observations that the scheme could not proceed as set out in the drawings attached to the notices. 

Indeed Mr Lloyd-Baker sent an email to Mr & Mrs Ferguson shortly before service of the Award stating “I am glad to hear it seems our party wall award is now finally resolved to the satisfaction of the third adjudicating surveyor.  Whilst I really hope this draws a line under it, I am aware your party wall surveyor Philip Antino is rather familiar with legal proceedings, mostly it seems to the detriment of his clients.  So if he hasn’t already, I imagine he will be lobbying your representative with all sort of reasons (sic) you should appeal the decision at your own costs and risk”.

Mr Lloyd-Baker is correct Mr Antino not only knows the legal proceedings, he was plainly more knowledgeable about the correct interpretation of special foundations and how the s.7(4) veto applies under the Act. Given, Mr Lloyd-Baker’s acceptance that the Award was invalid, and agreement to pay Mr & Mrs Fergusons costs this has been an expensive exercise for Mr Lloyd-Baker.

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along  invalid.  

 

 

 

Posted on May 13, 2017 .

Injunction stopping breach of Party Wall Act

Gibson & Gibson v Frisby (2017) Bow County Court

Injunction for breach of party wall legislation, Trespass, Boundary dispute, Nuisance andDamages. Mrs Frisby had under taken excavations within 3m and 6m of Mr & Mrs Gibson's property without serving notice. Mr Philip Antino was instructed to provide and experts report in support of the injunction. Mrs Frisby gave an undertaking and surveyors were appointed under the Act.  

Posted on May 11, 2017 .