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Riaz (Harry Potter) Uddin tenants loses lease

SECTION 146 Successful forfeiture of a Lease

 Philip Antino was instructed by Messrs A.A. Fisher (Properties) Ltd in relation to Mr Mohamed Riaz Uddin’s breaches of a lease for a property in East London.  Having secured the leasehold interest in 2012, Mr (Harry Potter) Uddin became what could only be described as the ultimate tenant from hell.

The property comprised of a mixture of retail at ground floor, with residential accommodation extending over three floors above.  Access to the residential area was through the shop and there were no provisions for sub-letting the premises.

 Within a matter of weeks, Mr Uddin had sub-divided the retail area, and then sub-let to two tenants, he had separated the rear parts of the retail area from the front creating an independent access to the residential areas, and had converted outbuildings and garages into bedsits.

 Not unsurprisingly, Mr Uddin did not obtain planning or building regulation approval or any approval or consent from the landlord.  The building works were illegal undertaken to sub-standards, construction practice, no NICEIC certification for electrics or gas safety certificates were obtained.

 The health and welfare facilities within the property were insufficient for the number of occupants that Mr Uddin had now encouraged to occupy the residential areas.

 In a three bedroom flat with converted commercial outbuildings etc. Mr Uddin was sub-letting to 23 tenants who were paying conservatively £100 per week each for occupation plus additional commercial rental space for the two units at the front of the shop.

 The standard and quality of the work would give a cowboy a bad name, proceedings were issued almost immediately after occupation by the landlord to seek forfeiture of the lease in late 2012.  For the past 7 years Mr Uddin has evaded, avoided, bringing the matter to its full and natural conclusion before the Court for numerous reasons which are set out below.

 However, in 2018 being branded as the Harry Potter landlord (cut and paste link) Mr Uddin was charged with numerous breaches of health and safety, and at Court pleaded guilty to a limited number of offences, for which he received a two year suspended prison sentence.

 An Order was also issued under the Proceeds of Crime Act to recover money he had wrongfully, illegally, morally obtained for the rent of the sub-standard premises.

 At earlier civil litigation by the landlord to recover the property, Mr Uddin had failed to turn up at Court offering excuses such as I am sorry my son broke his leg last night and I have had to take him to hospital, that turned out to be false.

 

On another occasion it was alleged that there was a bereavement in the family that turned out to be a false claim.  On another occasion another bereavement and that turned out to be a false claim, but at all times the Court gave this tenant every opportunity to get his act together and comply with the lease, but simply failed.

 The day of reckoning arrived rather ironically on Valentines Day (14th February 2019) when Mr Uddin arrived at the Court for the hearing he asked for permission to make an application for an adjournment.  He claimed that he required an opportunity to seek legal representation and when asked why he was not legally represented when there was on the Court record a firm of solicitors, and his barrister had been in discussions with the landlord’s barrister regarding the hearing, he simply announced that “I was called at 4.30 last night and told that my solicitors could not be here today plus they wanted extra money which I could not get to them in time for today’s hearing”.

 

Then Mr Uddin changes his story altogether, claiming it is nothing to do with the money, but the solicitors said that could not be here for reasons which were unclear.

 

The Judge expressed some concern about that excuse and suggested they perhaps should ask senior partner to attend the Court immediately, as their offices were less than 10 minutes away.

 At that time the clerk walked into the Court and handed the Judge papers of which the Judge then read aloud and it was a letter from Mr Uddin’s solicitors advising that at 4.00 pm on the 13th February they had been dis instructed by Mr Uddin and were therefore no longer acting on the record.

 A completely altogether different set of circumstances as given by Mr Uddin, of which the Judge quite properly recognized that Mr Uddin had lied to the Court in order to simply delay matters.

 The application for an adjournment was rejected.

 The case then proceeded to deal with a number of issues including non-payment of rent and more importantly the request for forfeiture under section 146 which was granted and Mr Uddin will now have to vacate the premises.

 Whilst the law moves slowly it does get there in the end and landlords should take heart from this judgment.

 If you are a landlord with problems with a non-compliant/difficult tenant then contact Philip Antino and he will advise and assist you together with putting you in contact with the appropriate specialist legal teams to ensure that your property is returned to you or that the tenant complies with his lease obligations.

 

Posted on February 28, 2019 .

"Harry Potter" Rogue Landlord receives a 12 months suspended sentance

Mr Riaz Uddin obtained a sub-lease on a combined residential/commercial premises in the London Borough of Newham.  The lease set out clearly that the residential premises which was accessible only through the commercial premises and for occupation by the leaseholder. There were no provisions for subletting the property.

 In 2010 the superior “freehold” landlord was concerned that Mr Uddin was acting not in compliance with his lease obligations and had fallen into arrears with his rent.  Mr Philip Antino of APA Property Service Ltd (www.apaproperty.com) was instructed by the landlords to carry out an inspection of the property and to report thereon.

 It became immediately obvious that Mr Uddin was not in occupation and had carried out unlawful structural alterations to separate the commercial and residential premises, and was now subletting the residential accommodation on a multiple occupancy (unlicensed HMO).

 The large rooms had been divided in some instances up to three times to create smaller bedsit rooms.  Surprisingly Mr Uddin had also formed stud partitions around stairwell enclosures, which were large enough to accommodate one single mattress and was also letting these to tenants, just like Harry Potter Mr Uddin had tenants living under the stairs.

 In all there were approximately 25 people living in the premises paying on average £125 per week per room.  The premises had one bathroom and a ground floor cloakroom.  There was no communal rooms, the kitchen was reduced by 50% in size to accommodate the alterations to external access with one fridge and one oven/hob.

 There was unauthorised interference with electrical wiring, there was no independent protective means of escape over the four floors.  No smoke, fire alarms installed and none of the works had been carried out with either planning or building regulation approval or indeed the superior landlords permission.

 Mr Antino reported these breaches of building regulations and planning to the London Borough of Newham.  Legal proceedings were initiated for forfeiture of the lease for these blatant breaches.

 The London Borough of Newham issued repeated warnings to Mr Uddin to make an application for planning and building regulations and then to carry out any appropriate works that were deemed necessary to ensure compliance and to vacate the premises immediately of all tenants or face prosecution.

Mr Uddin cleared the property of tenants for several months and then moved them back in following further unauthorised structural alterations to the property.

 The London Fire Brigade were notified of these ongoing breaches and concerns regarding the safety of the occupants, and they issued a prohibition notice preventing the use of the property for residential use.

 Mr Uddin was repeatedly warned that residential occupation was prohibited but ignored these warnings and repeatedly let and relet the premises to tenants.  He repeatedly misled the LFB and the council and the landlords surveyor Mr Philip Antino about the use of the premises.

 The UK border agency were notified of the occupancy and on the LFB the Council and the UK border agency raided the property.  It was abundantly clear to all concerned an supported the non-complaint building work evidence collated by Mr Antino that the building was in use as multiple persons albeit now reduced to 13 occupants at the date of inspection July 2016.

 It was abundantly clear that Mr Uddin was putting his own financial interests ahead of the safety of the tenants and/or his legal obligations as set out in the lease.

In April 2018 Mr Uddin appeared at Court and pleaded guilty to six offences as follows:

 2 for non-compliance with a prohibition notice for extended periods between 2012 & 2017.

 4 charges for substantive regulatory breaches of failure to provide fire alarms/detection, lack of compartmentation between shared kitchen and means of escape, dangerous condition of means of escape stairs and extremely excessive travel distances for means of escape.

 Mr Uddin was sentenced (as a totality rather than against individual offences) to 12 months in prison, suspended for 2 years and to 100 hours of unpaid work.

 A criminal investigation was commenced under the proceeds of the Crime Act 2002 where an application for a confiscation order for all of the illegal rent that Mr Uddin had received was made following the unlawful lettings.  This is a lengthy process which would require co-operation of Mr Uddin and full disclosure of his financial history by a credited financial investigators under supervision of the Court.

 This case was notable because it was the first time that the authority’s had attempted to do this in the absence of the defendant volunteering the information.  The issues are outstanding and will take approximately another 12 – 18 months to complete and therefore costs for the prosecution will be dealt within those confiscation proceedings.

 However, in her sentencing the Judge stated unequivocally that Mr Uddin should consider himself fortunate to have been spared immediate custody given the egregious case history.

 

Furthermore, it was held that the case appeared suitable for Mr Uddin to be entered on to the GLA rogue landlord checker following new procedures introduced pending the City of States Judicial Review.

 Observations

 In light of the recent Grenfell tragedy it behoves any landlord to act in such a way that is detrimental to the safety and well-being of the tenants.  If any person deserved a custodial sentence it was Mr Uddin, LFB were extremely disappointed that his sentence was suspended.

 Indeed, there have been occasions where the LFB have bought charges against other rogue landlords for less serious charges and they have received longer and immediate custodial sentences.

 There are now civil proceedings by the superior landlord to ensure forfeiture of the lease is achieved as quickly as possible.

 Philip Antino’s reports on illegal structural alterations, breaches of planning and building regulations were fundamental in the council taking up the individual prosecutions for the breaches of the planning and building regulations and the council then working closely with the LFB to secure this prosecution.

In Philip’s opinion this “Harry Potter” rogue landlord should count himself very lucky that he escaped custody.

Posted on September 12, 2018 .

Philip Antino successfuly argues against revised Thorley Road planning application

Thorley Hill:  Planning Application: East Herts Council accept Philip Antino’s submissions and REFUSE  the SECOND application

Following the rejection of the rejection of the first application under planning application 3/18/0899/HH (see June 2018 Blog), http://apaproperty.com/blog?month=June-2018 the owners of No. 1a Thorley Hill, Bishops Stortford, Hertfordshire, CM23 3ND submitted a revised  application to East Herts Council omitting the front extension. 

This incorporated a single storey rear extension.  The owners of No. 1 Thorley Hill remained  concerned that this would have a detrimental effect on their property and their quiet enjoyment of their house.  They instructed Mr Philip Antino to carry out a detailed assessment of the local authority planning and national planning policy framework policies, the site, the proposed works and to provide advice.

Mr Antino’s findings were such that he believed that there were justified grounds to register objections with East Herts Council opposing the revised scheme. .

Upon consideration of the relevant factors raised  by Mr Antino the council rejected the revised scheme

 

Posted on September 5, 2018 .

Philip Antino Prevents Planning Application detrimental to Neighbours Property

Thorley Hill:  Planning Application: East Herts Council accept Philip Antino’s submissions and REFUSE  the application

The owners of No. 1a Thorley Hill, Bishops Stortford, Hertfordshire, CM23 3ND submitted an application to East Herts Council for front and rear extensions under planning application 3/18/0899/HH.

This incorporated a two storey front extension and a single rear extension.  The owners of No. 1 Thorley Hill were concerned that this would have a detrimental effect on their property and their quiet enjoyment of their house.  They instructed Mr Philip Antino to carry out a detailed assessment of the local authority planning and national planning policy framework policies, the site, the proposed works and to provide advice.

Mr Antino’s findings were such that he believed that there were justified grounds to register objections with East Herts Council opposing the proposed development, particularly the double storey front extension which was within a matter of several metres of No. 1 Thorley Hill.

It was further of notable concern to Mr Antino that No. 1a Thorley Hill had already been extended substantively to the side with double storey extensions and to the rear, increasing the original footprint by some 350%.

Upon consideration of the relevant factors and the East Herts local plan 2007 policies EMV1, EMV5 and EMV6 together with the national planning policy framework submissions were made to the East Herts Council in the following terms.

The proposed front extension by reason of its scale, sighting and design would cause unacceptable harm to the amenity use of No. 1 Thorley Hill which would result in a significant loss of light and create an overbearing effect for the occupiers of No. 1 Thorley Hill.  The proposed extension, by reason of its scale, sighting and design would cause unacceptable harm to the character and design of the surrounding street scene.  The council took into account the representations made by Mr Antino on behalf of his clients and reached the decision having full regard to those representations, the development plan and all material considerations that the planning application should be refused for terms as clearly set out and submitted by Mr Antino on behalf of his clients.

The Council accepted Mr Antino’s submissions and REFUSED  the application.

 

Posted on June 30, 2018 .

Heshmet Bibizadeh, Janet Bibizadeh & Ashley Bibizadeh sued for Malicious defamation

Philip Antino v Heshmet Bibizadeh’s, Janet Bibizadeh & Ashley Bibizadeh (2017) High Court Queens Bench QBD Claim No. HQ17M02658

 The Bibizadeh’s have made false, malicious and defamatory libellous written statements.  In order to protect his position Philip Antino issued a claim in the High Court (QBD) on the 26th July 2017.

The defendants had been asked to withdraw their false, malicious, defamatory and libellous statements to apologise but have chosen not to do so. 

The false and malicious allegations made by the Bibizadeh’s are vehemently refuted by Mr Antino and will be defended both in the RICS regulatory procedures and in the High Court.

On the 19th October 2015 Mr Heshmet Bibizadeh having been seen by Mr Antino to be breaching an undertaking not to do notifiable works together with his son Mr Ashley Bibizadeh threatened Mr Antino with physical violence.  When Mr Antino called the police (which is recorded on a video tape) the Bibizadeh’s ran away.

The police attended spoke to the Bibizadeh’s and they made no allegations whatsoever of Mr Antino’s behaviour which they now maliciously assert and allege occurred at that time to the police.

The police officer asked Mr Antino if he wanted to pursue the offence but decided not to (a decision he now fully regrets) Mr Antino was not prepared to be exposed to any further abuse and on the 17th December 2015 following a court order for access attended the Bibizadeh’s property with police officers in attendance.

The Bibizadeh’s having two police officers in their presence again made no reference to the malicious and false allegations that they now allege occurred on the 19th October 2015.  In fact there was no allegations made until January 2016 and those allegations do not reflect the allegations that the Bibizadeh’s have now made to the RICS.

Mr Antino fully intends to pursue the Bibizadeh’s through the courts to seek the justice and protect his name and reputation.

It is unacceptable that any person irrespective of whether they have a professional status or not are exposed to such vicious, and vile abuse when undertaking their contractual/statutory obligations.

It is clear that there is a growing tendency amongst those owners caught breaking the law to become aggressive, abusive and in some instances violent.

 

 

Posted on April 12, 2018 .

Lydia McLeod & Bridget Makepeace of RICS

Lydia McLeod (“LM”) and Bridget Makepeace (“BM”) of RICS

Mr Merricks CBE Remit (in abbreviated terms)

It is important to emphasise that my remit covers only the standard of service provided by RICS. I judge standards of service against ordinary standards of customer service that can reasonably be expected of professional bodies: these include promptness and timeliness, consistency, clarity of communication, courtesy and respect; and adherence to proper procedures.

Therefore in this case I have confined myself to the question of whether level of service provided to Mr Antino was reasonable.

I (Mr Merricks) will assess the service provided to Mr Antino in relation to promptness and timeliness, consistency, clarity of communication, courtesy and respect; and adherence to proper procedures.

Promptness and timeliness

LM handled the complaint in a timely fashion, responding promptly to PA’s correspondence – until 28 June when she provided an update to PA and promised him further updates. There was then a significant gap until 26 July when PA felt it reasonable to ask for an update. 

A more serious delay occurred between 10 August (LM’s final contact with PA), and 3 November. During this time there was no contact with PA to update him.

My observations

 I will assess the service provided to Mr Antino in relation to promptness, consistency, clarity of communication, courtesy and respect; and adherence to proper procedures.

Promptness and timeliness

There was a gap in communication between the time of LM’s last email on 4 October and the time on 7 November when BM took up the file and wrote to PA. Otherwise the case proceeded with reasonable promptness of communication.

Consistency and Adherence to proper procedures

As BM identified, LM had not adhered to a proper procedure in failing to gather any evidence to substantiate the allegation that PA had failed to reply to correspondence. This was indeed a substantive failing and BM apologised for it.

I am unaware that LM’s request to PA to keep confidential information provided by Mr and Mrs Critchley was part of any proper procedure.  There is no obligation on a person who is the subject of a complaint to keep confidential information provided to that person in support of allegations made against him or her, and as that is the case, such confidentiality should not be requested. PA protested about it and received no response to his protests. The issue was simply ignored by both BM and CH.

 A person who objects to a request made by RICS during a regulatory investigation is entitled to be told whether and if so on what grounds the original request was justified, or if it was not, why the request was made in the first place. That was also a failing.

My conclusion

 I have identified some service failings in my review of these two linked investigations.

Walter Merricks

5 February 2018

Irony RICS Regulate Professional Standards

RICS did not provide appropriate professional services when seeking to investigate a false and malicious complaint.  If a member acted in such a way, he would be subject to disciplinary proceedings, yet the very people who determine members conduct are not accountable when they fail to achieve professional standards.

Background

In 2017 a Mr and Mrs Critchley made a complaint to the RICS about Philip Antino, alleging that he had not written to their surveyor Mr Marchant, and that Philip Antino had unnecessarily delayed or refused to correspond with Mr Marchant.

For those of you that are familiar with Philip Antino you would know that he is one of the most conscientious and efficient surveyors and always responds to correspondence.

The complaint was passed to Mrs Lydia McLeod of the RICS complaints team, Mrs McLeod did nothing other than write to Mr Antino setting out the complaint and alleging various breaches of the RICS rules.

Mrs McLeod did not ask for any proof or corroborating evidence from Mr and Mrs Critchley.  Mr Antino has never written to, corresponded with, spoken to the Critchley’s and only met their surveyor Mr Marchant on one occasion in May 2017, which lasted 6 minutes with Mr Antino’s client ordering Mr Marchant to leave.  There was an agreement that Mr Marchant would be given access to Mr Antino’s clients property for him to take measurements in relation to an allegation by the Critchley’s that the boundary had been moved by Mr Antino’s clients.

Upon receipt of the complaint Mr Antino immediately wrote to Mrs McLeod (by email) asking her to provide any kind of evidence in support of the allegations raised by the Critchley’s.  In Mr Antino’s view Mrs McLeod had been derelict in exercising her duty of care towards Mr Antino by forgetting or simply not asking the Critchley’s for evidence that supported the allegation.

Undeterred she proceeded to write to Mr Antino in the most strictest terms making all sorts of wild accusations that there were grounds for a disciplinary hearing in breach of RICS rules.

Mr Antino wrote in the strictest terms asking again for evidence and none was provided.  Mrs McLeod was then replaced by Mrs Bridget Makepeace, another member of the RICS regulatory team.  Mrs Makepeace immediately recognised (to her credit) that Mrs McLeod had failed to identify any reasonable grounds to justify opening an investigation into the allegations, and apologised on behalf of Mrs McLeod and then said she was closing the file.

 

Mr Antino was quite aggrieved by this, clearly recognising a breach of his human rights under Article 3 that the RICS were treating him in an inhumane manner.   To write to a professional threatening all sorts of allegations and breaches of rules when there was not one shred of evidence disclosed or even requested by the RICS investigating officer (Lydia McLeod) was tantamount to mental torture.

 

Mrs McLeod’s apology appeared to be the conclusion of the RICS involvement.  Mr Antino made a formal complaint about Mrs McLeod, it was referred to another team member who said quite simply that the service had not been to the standard that Mr Antino was entitled to receive from the RICS and they apologised on behalf of RICS and that was the end of the matter.

Mrs McLeod has not offered an apology during or since.

Mr Antino undeterred wanted the matter referred to another party and it went before Mr Walter Merricks CBE.

Now the irony of this situation is that the RICS regulatory team are there to ensure that members of the RICS demonstrate and comply with the appropriate professional standards, and if they do not, they bring proceedings and issue fines and costs against the member.

When the RICS regulatory team fail to demonstrate the duty of care and/or the appropriate level of service that they are required to provide, especially when purporting to be a regulating body, and wrongly, mischievously and negligently write to members without undertaking the basic checks to establish if there is any evidence to support an allegation made by a member of the public, that they simply walk away from this having given an apology.

The RICS should lead by example, when they make a mistake through negligence or a breach of their own standards then the person that has done that in this case Mrs Lydia McLeod, and as it turns out Mrs Bridget Makepeace as recognised by Mr Merricks should be fined, suspended from work, ordered to pay from their own pocket compensation to the surveyor who they have grievously harmed through their malicious and wrongful communications.

 

 

Posted on March 29, 2018 .

Sean Tompkins CEO of RICS Mistaken about his professional status !!!!!

Sean Tompkins CEO of RICS

Mr Sean Tompkins is the Chief Executive Officer (CEO) of the RICS.  He has a high profile position and from what can be seen from his job description is that he is there to promote the RICS.  The RICS reputation is purportedly founded on honesty, integrity and professionalism.  It therefore came as somewhat of a shock to Mr Antino whilst undertaking research generally about the RICS in preparation of a forthcoming expose on the RICS that he stumbled across the Form 288a appointment of a company director or secretary.

In 2006 Mr Tompkins completed a Form 288a for submission to Companies House to become a Director of St Benedict Homes Ltd.  The form was completed by Mr Tompkins in his own hand and he recorded existing directorships at that time being Director of RICS Business Services Ltd (2002 – to date) being 2006.

There is a requirement that the applicant provides a business description.  This is what caused Mr Antino some alarm and justifiably so because Mr Tompkins had written claimed to be a chartered surveyor.  Mr Tompkins has never been a chartered surveyor and remains at present without any professional standing within the RICS.

As a professional member of the RICS Mr Antino knows that it is wrong for anyone to hold themselves up to be a chartered surveyor, because RICS have by the Royal Charter, absolute control over the use of chartered surveyor.  In much the very same way as someone filling in a form purporting to be a barrister, a doctor, a High Court Judge, a member of RIBA, without having those professional qualifications would lead to serious repercussions by those regulating bodies and justifiably so.

Mr Antino therefore wrote to the RICS advising in the strictest terms that Mr Tompkins had held himself up to be a chartered surveyor.

There was no acknowledgement of the complaint letter until approximately 4 – 5 weeks later when Mr Antino received a response from the RICS legal team.  They thanked Mr Antino for bringing it to their attention, confirmed that they had looked into the matter and advised that this had been determined previously to be an administrative error.  They were therefore closing the file and doing nothing further.

An administrative error, what does that mean?  In the context of this plainly wrongful assertion on a legal document to Companies House, it cannot be an administrative error.  Mr Tompkins filled in a form, he signed the form, and having submitted it to Companies House in anticipation of becoming a Director.

That cannot fall within the definition of an administrative error.  An administrative error is filing the letter in the wrong file, incorrectly posting a letter to someone who should not get the letter, or putting the wrong address on an envelope, and sending the letter to an incorrect address.  That is an administrative error.

This response gives rise to the question of just how many other people are doing the same thing.  Mr Antino can assure you that it is not a rare occurrence.  In 2017 Mr Antino identified a Mr Blake trading as a party wall surveyor has stated on his correspondence, stationery etc. that indeed he was RICS qualified and regulated.  Mr Blake was not.  Mr Antino reported this gentleman to the RICS and they simply got him to remove the designated RICS logos and not to misrepresent himself any further.

Where is the protection that should be offered by the RICS to its members to prevent people wrongly and mischievously using the RICS Royal Charter of chartered surveyor.

Members work very hard to achieve that status and they are quite rightly entitled to have that status protected and not abused, however it is being devalued.

Posted on March 29, 2018 .

Mills v Sell & Savage The True Facts behind this bizarre case

Mills v Sell & Savage the truth the whole truth and nothing but the truth

It is very difficult to have any sympathy for the Mills, from the very beginning knowingly attempting to avoid their legal obligations under the Act, and as a consequence have created what can only be described as

For the past few years Philip Antino has maintained a dignified silence whilst quietly observing misconceived understanding of the TRUE circumstances surrounding the Mills v Sell and Mills v Savage decision handed down by HHJ Bailey.

It is abundantly clear from the feedback that Philip Antino is receiving from various parties attending these seminars that Pinky & Perky are not only generating but also circulating FAKE NEWS.

This paper now sets the record straight, it is factually accurate, correct and presented in order to ensure that those gullible enough to believe Pinky & Perky do not fall into traps which could lead them to forming the wrong opinions and interpretation of the Party Wall etc. Act 1996.

In 2015 Mr Stuart Mills RIBA a qualified architect and his then fiancée Miss O’Callaghan purchased 29 Pembury Avenue.  A mid terraced house comprising traditional construction with a pitched roof front to rear.  The property had not been extended or altered and had previously been occupied by an elderly gentleman.

Shortly after purchasing No. 29 Mr Mills and Mrs Mills (nee O’Callaghan) introduced themselves to Mr & Mrs Sell and in a meeting that lasted no more than 5 minutes proudly exclaimed “we are going to do some improvement works”.

Mr & Mrs Sell thought no further of it and were pleased to note that the property will be bought up to a good standard of repair.  However, let’s not forget Mr & Mrs Sell are laypeople, Mr Mills is a RIBA qualified architect and his wife Mrs Mills also works in property, and were for all intents and purposes professionals.  It was somewhat surprising if not shocking that Mr Mills and his wife chose not to comply with their statutory obligations and did not serve notice for the following works.

·         Removal of chimneybreast

·         Excavation of foundations to front extension under s.6(1)

·         Building a new wall on the line of junction to the front garden

·         Removal of internal walls and cutting away from the party wall

·         Exposing the party wall and forming a loft conversion

·         Notices under s.6(1) for rear extension foundations

·         Removing the rear elevation wall

To those conversant with the Party Wall Act it will be somewhat galling that a RIBA qualified architect chose to ignore his statutory duties, but when we then consider the extent of the works which they wanted to undertake and the legality we can perhaps start to get a better picture of why they did not want to invoke the Act.  Notice it would have exposed the erroneous designs of Mr Mills RIBA, which involved various trespasses, nuisances and could not actually be built without the adjoining owners, Mr & Mrs Sell’s permission.

Mr & Mrs Sell were oblivious to the Party Wall etc. Act but works started.  A porch was constructed to the front with a hipped roof which involved the guttering, fascia, soffits projecting across the boundary between No. 29 & 31 creating a trespass.

To the rear of No. 31 the Sell’s had a longstanding single storey extension built wholly on their land.  Mr Mills design not only included enclosing upon that extension, but extending the flank wall of that extension in line (thereby wholly on No. 31’s land) to create a larger extension to the rear of No. 29.  This created another trespass plus it also exposed the Mills to having to pay a contribution at the very least to No, 31 for using their wall.

What was more frightening was the fact that this extension to the rear could not actually be built because where the Mills had decided to extend the Sell’s flank wall, required the removal of No. 31’s drain gulley which collected surface water from the extension roof, kitchen sink and washing machine waste.  This drain was located on the right hand corner (facing front) adjacent to the boundary and extended diagonally across the rear of No. 29 into an inspection chamber.  The drains running across the rear of the terrace of properties was therefore a common drain within the ownership of Thames Water Authority.

One day after returning from work whilst standing at her kitchen sink and washing up Mrs Sell pulled the plug and was saturated by an escape of water.  When she looked under the sink, the waste pipe and trap had been dislodged from the sink.  On further investigations externally they noted that their existing drain had been blocked off, their patio had been excavated a new trench formed on the opposite left hand corner of their extension.  A new plastic gulley inserted which upon lifting the manhole cover extended into the inspection chamber, approximately 400mm above the drain!!!

The guttering to the rear of their extension had been pulled off, turned around so that it fell in the opposite direction.  Installed and discharging into this new drain gulley.  The washing machine waste and kitchen sink wastepipes had been taken off, twisted around the discharged into this new gulley.

Mrs Sell then approached the builders on the following day where it became evident that the building contractor was a Mr Kevin O’Callaghan, none other than Mrs Mills father.  When confronted about this outrageous trespass and damage Mr O’Callaghan simply laughed and said we can do what we want, what are you going to do about it?  It was at this stage Mr & Mrs Sell then took legal advice.

Solicitors advised Mr & Mrs Sell to get a surveyors report, they did an internet search and subsequently instructed Philip Antino to provide an expert report on trespass and damage.  It will come as no surprise to those who are reading this blog that Philip Antino immediately noticed the breaches of the notifiable works under s.6(1), s.1(5) and s.3(1) and various sub sections under s.2(2).

At the time of the inspection the porch had been constructed to the front, the hipped roof was formed in an exposed timber skeletal frame, no fascias or soffits, or gutters fitted, but it was clearly evident that there was a trespass.  The rear extension walls had been built, no roof formed, scaffolding erected and roof tiles stripped from the front and rear elevations of the roof, the internal load bearing walls had been cut away from the party wall and chimneybreast removed in various locations adjacent to No. 27.

What was more alarming than anything was the illegal entry on to No. 31’s land and the works carried out to alter their drains, which for the avoidance of doubt is absence of any licence by the water authority in.  This could not be granted because it is the property owner that has to make the application not a neighbor, and Mr & Mrs Sell were not asked.

Philip Antino was instructed and provided a report and wrote to the Mills pointing out their breaches, asking them to give an undertaking not to do any further works until the party wall matters were resolved and the various trespass works also resolved.  Solicitors advised an injunction.

It would not be unreasonable to expect a RIBA qualified architect to simply accept that they have done wrong, and then try to resolve the matter, but not Mr & Mrs Mills.  There was an increased flow of workmen on site clearly intending to finish any remaining notifiable works before an injunction could be obtained.  An injunction was obtained and at the return date hearing 3 days later before HHJ Gold, Mr & Mrs Mills when questioned by the Judge.  They openly admitted that they were fully aware of and knowledgeable of their obligations under the Party Wall Act.

Mr Mills then did something quite outrageous he told the Judge that he had in fact served notice.  When HHJ Gold asked him to produce those notices, he of course could not.  He had effectively attempted to mislead a Judge.  This is all documented in the transcript.

The injunction was granted and that all notifiable works were stayed until party wall matters were completed.  Mr & Mrs Sell were then subjected to what can only be described as harassment, abusive behaviour, all of which was unnecessary, wholly avoidable, that involved the police being called out on a number of occasions.

One would have hoped that Mr & Mrs Mills would have now realised that the game was up, they were caught like the proverbial rabbit in the headlights and that unless they deal with this properly, things would continue to their detriment.

They appointed Mr James Hopkins MRICS a chartered surveyor, who together with Mr Antino selected Mr Charles Dawson as the Third Surveyor.  A meeting was arranged to   prepare a schedule of condition and to discuss those elements of works which had not been completed.

One would have hoped that this would have been a simple straightforward to resolve, but Mr Hopkins became objectionable with regards to various matters, which led to a referral to Mr Dawson.  The referral was dealt with.  Mr Dawson then notified the parties that he was ready to release his Award on payment of an amount of money from both the Mills and the Sells. 

Mr & Mrs Mills refused to pay the Third (Charles Dawson)Surveyor’s fees, leaving Mr & Mrs Sell to pay the money and if the Award went in their favour then having to sue the Mills to recover that money.

Is this appropriate behaviour for a RIBA qualified architect?

Upon receipt of the Third Surveyors Award Mr Hopkins wrote to Mr Antino “I am deeming myself incapable of acting under s.10(5) because my owners do not have any money to pay my fees”.

Mr Antino considered that was not sufficient grounds to deem oneself incapable of acting.  Morally, professionally any professional with an ounce of integrity would have continued to act.  Simply walking away on such spurious grounds did not render Mr Hopkins incapable, it just meant he did not want to do it because he thought he would not get paid.

Mr Dawson the Third Surveyor wrote to Mr Hopkins stating that they were not justified grounds for deeming oneself incapable of acting and that he remained the appointed surveyor.  Shortly thereafter Mr Dawson deemed himself incapable of acting because he was leaving the country for several months on business.

Mr Antino was now faced with a frustrating situation.  There was no building owners surveyor and no Third Surveyor who he could join with him under s.10(10) to complete the outstanding party wall procedures.

Requests were made for Mr Hopkins to join with Mr Antino in selecting a replacement Third Surveyor, they were met with silence.  Mr Antino made a referral to the local authority under s.10(8) and provided a list of all the surveyors that Mr Hopkins and Mr Antino had previously discounted for various reasons.

Mr Antino suggested to the local authority they might want to consider appointing someone of considerable experience and expertise in party wall matters and someone who is of high standing in a professional organisation, he suggested Mr David Taylor President of the Chartered Association of Building Engineers.

Mr Antino had never previously worked with Mr Taylor on any party wall matters.  He therefore did not consider any perceived or actual conflict of interest arising and given his status as the President of CABE that would be more appropriate than the local authority appointing another surveyor who may simply walk away or decline his s.10(8) selection.

During this time the Mills were silent, except however for Mr O’Callaghan the father/father in law of the Mills who was now becoming very vocal and writing various correspondence, which is somewhat ironic given that he was the builder who had trespassed on to Mr & Mrs Sell’s land, caused the damage, the nuisance etc.  The Mills simply refused to engage with their statutory duties until the selection of Mr Taylor.  Then the Mills suddenly woke up and realised that they will have to comply with the legal obligations as set out by Parliament under the Act.

They appointed Mr Mike Harry, previously unknown to Mr Antino. I was genuinely anticipated that this would be a welcomed relief from the tirade of correspondence which was simply nonsensical for Mr O’Callaghan.  However, that was to be short lived, Mr Harry’s opening gambit was to provide a letter of appointment which indicated that the Mills were now living at a particular address which was in fact incorrect.  Given that there is an obligation to serve notice on the last known address, Mr Antino quite rightly wanted to know exactly where the Mills were living, because not only had they never lived at 29 they had now sold it to Mr O’Callaghan.  The plot thickens.

Why would a building owner want to withhold their address unless it was to avoid being served with an Award!!!

Mr Harry unperturbed by Mr Antino’s request then agreed to have another letter of appointment signed which included another incorrect address for the Mills.  Mr Harry then proclaimed that in any event it does not matter, proclaiming we do not even need to have an address on a letter of appointment.  Really!!!

Well despite what Judge Bailey said in his judgment, that has to be in law fundamentally wrong, because that could open all sorts of possibilities for people to abuse appointments.  Falsely claiming to be appointed by owners when they are not, it could lead to documents being sent to an incorrect address therefore not reaching the adjoining owners, but more importantly why would you not want to have an address on the letter, it makes no sense, especially when it must be included in the Award.

There was a referral to the Third Surveyor Mr Taylor, Mr Antino believed that he owed Mr Taylor an implied if not an explicit duty of care to advise him of the Mills previous conduct in refusing to pay Mr Dawson’s fees.

The fact that the Mills had a proven history of simply ignoring the statutory procedures and/or requests by Third Surveyors for payment, Mr Antino was quite concerned (justifiably so), and that the Mills would do exactly the same again.

Mr Antino invited the Third Surveyor to make a request from both parties that they should pay their fees in advance of him doing any work rather than Mr & Mrs Sell again being faced with a fait accompli and having to pay all the fees.

Mr & Mrs Sell agreed, Mr & Mrs Savage, and guess what the Mills refused saying it was unlawful.  Now subsequently in the forthcoming hearing HHJ Bailey said that was inappropriate and unacceptable, which in my opinion was wrong.

However, HHJ Bailey on the 14th November 2017 in the Mohamed v Antino & Stevens case where Mr Antino raised the very point as to how surveyors would get paid if owners could simply rescind the appointment of the tribunal of surveyors and replace them with someone they refer to as an agreed surveyor.

Shock horror, HHJ Bailey said well there is nothing to stop the Third Surveyor asking for money up front and during the process of the referral.  This is a clear contradiction of what HHJ Bailey ruled in the earlier decision of Mills v Sell and Mills v Savage!!!

The matter needed to be resolved the Sell and Savage families paid the fees as requested by Mr Taylor, the Mills did not.  An Award between the Third Surveyor and Mr Antino under s.10(10), perfectly lawful was served in accordance with s.15 of the Act at the last known address.  An address had been proven to be for the Mills in Croydon certificates of posting were obtained.  Not unsurprisingly the Mills were silent for a period greater than 14 days.  Then up pops Mr Frame on behalf of the Mills with an application to appeal the Award and surprise surprise they claimed they had never received the Award in the first instance.

Now that in itself is quite a shocking statement to make, given the well-established and longstanding law and with specific reference to s.7 of the Interpretation Act adopted throughout the legal profession.  Post is deemed to be delivered 48 hours after being consigned to the Royal Mail, the certificates of posting confirmed that the Awards had been consigned, Mr & Mrs Savage received their copy of the Award, Mr & Mrs Sell received their copy of the Award.

The Award went against the Mills and quite rightly so for the breaches, the damage, the trespass and the nuisance.  However, in his infinite wisdom HHJ Bailey deemed that the Awards had not been received (he did not say they had not been posted).

HHJ Bailey continued stating he was surprised that the Awards had not been served by email.  Now a lot of surveyors will say that seems sensible but given the explicit wording of s.15 there is no provision for service of Awards by electronic mail and therefore the Awards were served in accordance with the Act.

If we then move forward to the recent Court of Appeal decision in Knight v Goulandris another one of HHJ Bailey’s decisions justifiably overturned by the Court of Appeal, he stated that the Award served by the Third Surveyor was invalid because it had been served by email.  A direct contradiction to what he was claiming in the Mills v Sell and Mills v Savage case!!!

Furthermore, for those of you are familiar with the party wall procedures will be aware of the Party Wall etc. Act (Electronic Communications) Order seeking to clarify whether or not electronic communications were sufficient for service of documents.  So it is quite clear that there was conflicting opinions and interpretations as to whether service by email at that time was valid or not.

Mr Hopkins claimed that he could not continue to act because Mr & Mrs Mills did not have any money to pay his fees.  The question then is how did they propose to Mr Harry’s fees and then subsequently following commencement of litigation they miraculously found tens thousands of pounds to pursue what was an appeal of an Award which does not achieve anything for them because the party wall matters are still ongoing and they will still be faced with the same claim that they trespassed, caused damage, breached their statutory obligations and are required to pay costs and professional fees incurred.

Philip Antino 28.03.2018

Posted on March 28, 2018 .

Dr. Ahmed v Mr G Moore & Mrs S Moore (2018) Court of Appeal

This is a rather bizarre if not very sad case of where Dr Ahmed having lost her case in 2012 she decided she would try again and made an application to the Court of Appeal to appeal the earlier decisions.  Some 5 years after losing and well outside the timetable for the lodging of an appeal, Dr Ahmed went off to the Court of Appeal (2017) to plead her case that there were exceptional grounds for granting an appeal.

It transpired in the documents submitted in support of the appeal that for the past 5 years she had been pursuing complaints against just about everybody she thought she could have a go at in order to try and get the money back that she lost through her inappropriate litigation.

This of course was very upsetting for Mr & Mrs Moore who thought after so many years of inactivity that the matter was now fully behind them, having been paid all of their costs that they laid out, just starting to get back on track and the distressing memories of the litigation brought about by Dr Ahmed were becoming part of a distant memory.

Mr & Mrs Moore contacted Philip Antino immediately and asked whether she could in fact do this.  Mr Antino did not believe that she could but referred them to Mr Ashley Bean of Littlestone Cowan Solicitors.  Mr Bean wrote a letter to the Court on behalf of the Mr & Mrs Moore (because Mr & Mrs Moore did not have a right of audience).  The Court rejected Dr Ahmed’s application stating that there were no extenuating grounds for the unreasonable and excessive delay in making the application to appeal.

Undeterred Dr Ahmed then made another application to appeal the decision of the Court of Appeal for refusing her grounds to appeal, and a hearing was listed for the 27th February 2018.

Mr & Mrs Moore having discussed the matter with Mr Antino who seemed quite bemused with this situation believed that Dr Ahmed really would not succeed, Mr & Mrs Moore then instructed Littlestone Cowan and Mr Richard Power of Lamb Chambers who made written submissions which again went before the Court.

Dr Ahmed’s application to appeal was dismissed and Mr & Mrs Moore’s costs ordered against her.

Posted on March 21, 2018 .