RICS surveyors indemnity insurers pay up 2019

RICS Mr Mark van Blommestein of Pearson Gore Surveyors – MRICS Chartered Surveyor and Party Wall Surveyor

Mr van Blommestein’s professional indemnity insurers settled the claim, with Mr van Blommestein contributing the £2,500 excess.

Back ground

Mr van Blommestein MRICS was appointed by an adjoining owner to give advice in relation to a proposed extension by the building owner. He did not engage fully with the adjoining owner to the extent that left the adjoining owner rather bemused and confused about what was actually taking place.

When the Award was served it transpired that Mr van Blommestein MRICShad together with a Mr Baker a member of the Faculty of Party Wall Surveyors (FPWS) (the building owners surveyor) awarded the construction of a new wall on the line of junction, and foundations would project across the boundary line onto the adjoining owners land, authorising scaffolding on the AO’s land.

Now the adjoining owner being a man in his 60’s whilst not conversant with the Act, or construction, considered this to be somewhat unusual.

He took advice from Philip Antino who spotted the errors immediately and wrote to Mr van Blommestein in clear terms advising him that the Award was invalid because (i) he had no jurisdiction to determine a wall on the line of junction without any s.1(5) notice having been served, and (ii) the s.6(1) notice for excavations did not entitle Mr van Blommestein to authorise foundations projecting onto the adjoining owners land.

Effectively what Mr van Blommestein had done was authorise a trespassing foundation and scaffolding. Mr van Blommestein was invited with Mr Baker to withdraw the Award, serve a new Award, removing the trespassing foundations and if there was an intention to build a wall on the line of junction, to serve the appropriate notice.

Somewhat shockingly, Mr van Blommestein together with Mr Baker argued that their Award was valid, and that you did not need to serve a notice under s.1(5) because the notice under s.6(1) allowed for a structure to be built on top of it!!!

Clearly, neither Mr van Blommestein nor Mr Baker understood the mechanism behind s.1(5) or the mechanism that required the notice of excavations under s.6(1).

Mr Antino advised the adjoining owner to make an application for a declaration of invalidity.

Mr Antino referred the adjoining owner to a solicitor and barrister who prepared the application for a declaration of invalidity running up many thousands of pounds in costs.

The adjoining owner was put to unnecessary inconvenience, nuisance and distress through the intransigence of Mr van Blommestein and Mr Baker.

Mr van Blommestein was invited to declare himself incapable of acting under s.10(5) because the relationship had broken down and clearly it was considered that he was incapable of dealing with this objectively and impartially, a clear conflict of interest had arisen, because there was a potential claim for negligence against Mr van Blommestein.

Mr van Blommestein refused to stand down, then rather shockingly joined together with Mr Baker without any prior notice and served another Award removing the trespassing foundations and also moved the wall away from the boundary so it was constructed inside the boundary line, and thus removing the right to erect scaffolding.

Mr Antino is not quite sure why Mr van Blommestein could not have done that in the first place, but after £8,000 of legal costs, an Award had now been set up that was considered to be valid.

However, on closer inspection of the drawings Mr Antino spotted another issue, it transpired that the boundary position had now miraculously been moved into a different location, to that in the first set of drawings, and that caused a further dispute.

Mr van Blommestein refused to respond to the adjoining owners solicitors who wrote in clear terms that they would not appeal this Award on the basis that it was accepted that the boundary was in the position as noted in the first Award, and not in this revised second Award.

Mr van Blommestein was put on notice that a complaint would be registered, as the adjoining owner quite rightly wanted to be reimbursed for his costs.

Mr van Blommestein complaints handling procedure (CHP) was requested, this was flawed because it related to a dispute resolution procedure that no longer existed. Mr van Blommestein was asked for a revised CHP, this one was also flawed, because he had included a dispute handling procedure for landlords and tenants of which the adjoining owner was neither. This was becoming a comedy of errors.

Mr van Blommestein was asked for a third CHP which was ultimately given,

Mr van Blommestein was invited to settle the adjoining owners costs.

Mr van Blommestein’s professional indemnity insurers settled the claim, with Mr van Blommestein contributing the £2,500 excess.

Do you have concerns with your surveyors conduct and/or Award, if so contact Philip Antino.