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:
BOS2 refused to acknowledge documentation that existed and not working impartially,
Took advice from a solicitor, which is by definition, conspiracy.
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.