Party Wall Act Costs - Protecting the building owner from the Highwayman

Introduction 

One of the most worrying aspects of entering the Party Wall Act 1996 (Act) arena is the uncertainty surrounding  fees, or as they are referred to within the Act -‘costs’. 

If you are fortunate enough ( or some might say lucky enough) to have at your side a competent party wall surveyor, and one with a moral compass, the chances are you will derive a certain degree of protection.  However, there is still no guarantee you will not need to set aside a considerable sum of money to cover the cost of becoming trapped within the Act.  This applies equally to both building owner and adjoining owner, and one must not forget that if an adjoining owner’s surveyor does not recover all of his costs from the building owner, there is every possibility the adjoining owner may be left to meet the remaining liability. 

The problem of high, unreasonable and unpredictable costs is caused, in part, by a piece of malfunctioning legislation, and patly as a result of certain unconscionable conduct on the part of some of those so called ‘experts’ working within and purporting to discharge their statutory duties under the Act. 

Philip Antino, a party wall surveyor, writing in 2011 ( P Antino, Dealing with Unreasonable Costs (Faculty of Party Wall Surveyors’ Newsletter: ‘Party Wall Surveyor‟, January 2011) issued  the following warning:

‘……the peculiarity of the Act is such that the appointed surveyor does not have to be qualified or trained in party wall matters or indeed affiliated to any professional body. Consequently, they are therefore not bound by the code of conduct or ethics of any professional body. Dealing with these types of surveyors ………………that adopt these procedures is very frustrating. Their approach is detrimental to principles of the Act and makes the whole process extremely difficult to manage.

So what does the Act say on costs?

The relevant parts can be found in sub-sections of section 10  of the Act:-

Sub-section (12): An award may determine... (c) any other matter arising out of or incidental to the dispute including the costs of making the award

Sub-section (13): The reasonable costs incurred in - (a) making or obtaining an award under this section... shall be paid by such of the parties as the surveyor or surveyors making the award determine

This means the costs must have been incurred in connection with the making and production of the award, and must also be reasonable in terms of relevance and the amount of fee sought.  

What does the cost of making or obtaining an award include?

According to leading Party Wall Barrister Nick Isaac (Party Wall Surveyors and their "reasonable" fees - published January 15, 2018):

 ‘….all of the to-ing and fro-ing which goes into producing the document entitled "award" which the surveyors eventually produce - generally speaking that is almost all of the surveyors' time between a deemed dispute arising 14 days after service of a notice under section 3 or section 6(5), and the award itself being signed. It will include communicating with the other surveyor, obtaining and checking the relevant information for the making of the award, and the time spent actually drafting the award, or revising it.

What is not included is the cost of actual or contemplated litigation. 

This was recognised by  Etherton J, as he was then, when delivering the only judgment of the Court of Appeal in Reeves v Beatrice Blake [2009] EWCA Civ 6111 :

‘The purpose of the 1996 Act is to provide a mechanism for dispute resolution which avoids recourse to the courts. A power of the appointed surveyors under the 1996 Act to make provision for costs incurred for the purpose of actual or contemplated litigation in court would be inconsistent with that statutory objective. Such litigation, resulting from noncompliance with the dispute resolution mechanism, falls entirely outside the statutory dispute resolution framework.”

The view was reaffirmed in Reeves v Blake [2010] 1 WLR 1.

Nor does it include the cost of enforcing an Award, as was recognised by HH Judge Bailey in  Reeves v Young Antino (C20CL109 Approved Judgment(1).  Upon being required to consider the  enforcement costs of  Philip Antino the judge found :

‘It seems to me that the legal costs of pursuing a sum for costs awarded by a surveyor, or surveyors, to himself or themselves, in an award is not properly considered to be a matter arising out of or incidental to the dispute. On the contrary it is a matter which arises outside the 1996 Act. All courts of law govern their own procedures, including any incidence of costs arising out of proceedings before the court. The fact that a party wall surveyor has to go to court to enforce his award leaves him in no worse a position than any other litigant. He is entitled to claim such costs as are available to him in the relevant court’s procedures. It is possible for a surveyor to enforce his award either in a Magistrates’ Court or in a County Court and he may make his choice and obtain such costs as are available in each of those different courts. Therefore in including the passage which I have put in italics it seems to me that Mr Antino is going beyond that which he is entitled to do under the 1996 Act’.  

So which items of work are covered? Is all communication between the surveyors post appointment covered per se?  I would argue no it is not.  The purpose of each letter, telephone call, or other exchange should be examined.  For example, if the surveyor acting for the adjoining owner has written numerous letters unnecessarily arguing each and every point and has failed to focus squarely on discharging his or her statutory duty, should the owner be responsible for those fees?  Moreover what is the position where unnecessary work has been generated for no reason other than deliberate procrastination, or the constant shifting of position, designed to increase that surveyor’s fee entitlement? 

More often than not a party wall dispute will involve work that falls outside of the jurisdiction of the Act, but which an unscrupulous surveyor may attempt to include as part of his or her party wall costs. For example, the time spent on addressing and responding to common law issues, such as encroachment.  There is nothing of course preventing the surveyor from recovering these fees from his or her appointing owner, but without making sure cost claims are considered closely, there exists a risk that a building owner may be charged for this non party wall work.  Added to this is the problem the mechanics of the Act leaves it to the surveyors involved to agree fees between themselves. This can often leaves the home owner excluded, and left only with the option of an appeal to the County Court. 

The need to protect the building owner was recognised by Phillip Antino in his article:

‘The appointed surveyors‘ duty is to ensure that the procedures are applied properly and this would include ensuring that a building owner is not put to any unreasonable expense, either as a consequence of unethical ruthless strategies adopted by the adjoining owner‘s surveyor, or indeed as a consequence of any false claims made by an adjoining owner’.

Mr Antino drawing on his wealth of experience, clearly recognised the problem faced by the building owner when faced with a demand for unreasonable fees, and of the need for surveyors, particularly third party surveyors ,to be alert to unreasonable practices of this type. 

Reasonableness 

Tied in with the need for costs to be tied into or arising out of the dispute, is the question of reasonableness. Nick Isaac in his article suggests the assessment of fees raised by an adjoining owner’s surveyor should not be regarded as routine, but should comprise instead of a more considered approach, taking into account some fundamental principles.  He suggests the following questions would be asked when looking at a breakdown of costs:

Firstly, was it really necessary for that piece of work to be undertaken?  For example, if ten letters were sent when only two were actually necessary, then only the fee for those two letters should be allowed.

Secondly, was the time spent reasonable having regard to the nature of the dispute and the skill and experience of the surveyor in question.  For example, if the only issues between the parties comprised of some minor damage occurring during the performance of notifiable works, should an adjoining owner’s surveyor be able to claim, without challenge, a large number of hours  for investigating, reporting, negotiating and producing an award?

This has particularly relevance when faced with a surveyor who has a very high hourly rate and who records every minute of time spent working.  

This was one of the other issues His Honour Judge Bailey was asked to determine in Reeve v Youngs  and Antino.   

Commenting on the reasonableness of Mr Antino’s charging rate of £350, and the time he spent as one of the appointed surveyors, the Judge said:

‘Fees involve both hourly rate and hours spent. A high hourly rate, if it is to be reasonable, will be justified only where the surveyor has and demonstrates particular expertise or exercises such efficiency that he carries out more work than a surveyor for whom a lower hourly rate is appropriate. In comparison with the charges made by surveyors in many of the awards that have been before this court £350 per hour is a very high rate. Casting one’s eye down the breakdown of Mr Antino’s fees one can well envisage he would have very great difficulty indeed in persuading a court that the hours spent at this hourly rate was anything approaching reasonable. But although I have highlighted the difficulty inherent in setting out an hourly rate in a party wall award I do not consider that I can properly go so far as to say (as I have been invited to do) that hourly rates should not be set by surveyors or that any particular hourly rate, subject, of course, to ludicrously high rates (and £350 ph while very high in comparison with the market as a whole cannot be stated to be ludicrously high), must necessarily be invalid within the context of a party wall award’.

This suggests the following :

• It not proper for an Award to record an hourly rate.

• A surveyor can essentially charge his or her time out at any rate providing it is not ‘ludicrously high’.

• There is a reasonable expectation that where there is a high hourly rate, the time spent by that surveyor should be significantly less than that of a less experienced surveyor with a lower hourly rate.  The cost of research is a good example of time that should not be charged to a building owner by an experienced surveyor.  

The third principle and perhaps the most important one is proportionality.   

As Nick Isaac points out, this element has for a longtime spent a very prominent role in the assessment and determination of fees claimed in litigation. He argues there is no reason for this to be any different in the context of assessing the reasonableness or otherwise of a surveyor’s fee. 

He explains:

‘This is a concept which is universal in consideration of fee assessment in civil litigation, but which appears generally little-known or understood amongst surveyors. A cynic might argue that this is because proportionality can have a very significantly depressing effect on levels of recoverable fees. Nonetheless, I would suggest that proportionality is very much at the centre of any consideration of reasonableness in terms of fees. In essence, and borrowing from the CPR definition of the same, the person determining the reasonableness of fees has to consider whether the amount of fees which are sought to be awarded bear a reasonable relationship to: (a) the cost of notifiable works which are the subject of the award, (b) the complexity of the dispute resolved by the award, and (c) any additional work generated by the conduct of the paying party.’

Some may say this is nothing more than a statement of common sense.  How could a surveyor reasonably raise a fee of, say £3,000 for representing an adjoining owner in a dispute where the notifiable works to be recorded in an award only amount to say £200?  Complexity I accept, may be a factor, but as we all know, as indeed Mr Antino hints at in his article, there are certain surveyors who can make even the most straightforward of disputes complicated and protracted 

One must keep firmly in mind the purpose of the Act.  The Act was designed to prevent and resolve disputes.  It was never intended to provide unscrupulous surveyors with a vehicle to ‘cost build’ at the expense of the paying owner.   Nick Isaac in his article calls on the profession and regulators to do more to address this problem:

‘Although the majority of party wall surveyors, objectively viewed, approach the assessment of reasonable fees in a sensible way, there are unfortunately a few surveyors who treat the Act as a licence to print money. I have expressed the view previously, and do so again, that the surveyor's profession as a whole, or certainly those who practice in the arena of party walls, should be very concerned at the damage which such surveyors are undoubtedly doing to the reputation of the profession as a whole. If professional bodies do not take appropriate steps to regulate such matters, the courts and, ultimately, parliament, may do so’.

So what action can be taken when faced with an unreasonable cost demand?

To begin with, there is nothing to prevent you from reminding the surveyor of his or her statutory duty.  

Each surveyor owes an individual duty of impartiality to each of the appointing parties and that this must take priority to the interests of their own appointing client.   There is also an overlapping duty of diligence in administering the provisions of the legislation which would be owed to both parties equally. 

It is suggested (‘Impartiality and the Party Wall Surveyor ‘ - Chynoweth, P):

‘…a failure by surveyors to deal promptly with matters arising under the legislation, possibly even in response to express instructions from their appointing owner, would therefore result in a potential liability to the other appointing owner’.

These incidents are not isolated. They are increasing in number and, as Nick Isaac alludes too, there is a need for surveyors to ‘police’ their colleagues more closely and to refer rogue surveyors to their regulator. There is a collective responsibility to do more to stamp out this fast growing epidemic.  

The next option is to consider the ex parte procedure.  Mr Antino is an advocate of this process, and in his article he suggests that a building owner’s surveyor faced with a unreasonable  fee demand should simply acknowledge the fee as unreasonable, and to then, after giving appropriate notice, proceed to draw up and serve an award ex parte.

The enabling parts of the Act are sections 10(6) and 10(7) which provide :

Section 10(6) of the Act states: “If a surveyor [...] refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he has been an agreed surveyor”. 

Section 10(7) states: “If a surveyor [...] neglects to act effectively for a period of ten days beginning with the day on which either party or the surveyor of the other party serves a request on him, the surveyor of the other party may proceed to act ex parte in respect of the subject matter of the request and anything so done by him shall be as effectual as if he had been an agreed surveyor”

The authority of Frances Holland School v Wassef [2001] makes it clear that to rely on this part of the Act there is a strict need to for evidence to be recorded within the ex parte award to illustrate either a refusal to act effectively or a failure to act effectively within 10 days of a request.  This will include evidence to show that whatever action may have been taken by the other surveyor has not been effective. 

There is an argument that by proceeding in this way that the surveyor chasing the unreasonable fee could be left high and dry, at least in for far as making a recovery from the building owner. 

In an article  ‘Going It Alone: ex parte Awards’ James McAllister explains the risk:

‘Taking matters further, it could be submitted that the fees of the surveyor refusing or neglecting to act need not even be entertained by the ex parte surveyor since their services (and naturally their appointment) will have been summarily discharged with the service of the ex parte award; this example, of course, assumes the ex parte award covers all the points the surveyors were appointed to settle. Accordingly, the non-participating surveyor will no longer exist as a statutory member of the tribunal and fees need not, therefore, be awarded. If the supplanted surveyor wishes to pursue his fees with the appointing party directly, then that is their prerogative, but this could only be enforced contractually, if indeed a contract exists’. 

Mr Antino in his article also warns that in adopting this ex parte procedure there is still a need to:

‘[d]demonstrate reasonableness at all times; again, to protect your owner against any claims for costs [and] [a]pply the Act procedures with impartiality; you should then achieve the same objective, which is to ensure that the building owner only pays reasonable costs’.

Finally, there is a need to consider the role of the Third Surveyor. 

It is open to the parties to agree an award on the agreed issues and to then refer the issue of fees to the Third Surveyor for determination. There are costs risk associated with this referral for the losing party, and therefore one must always take a pragmatic approach when considering whether the fee is reasonable or not. 

The building owner has to trust the Third Surveyor to understand what is involved in the assessment, of what is and what is not reasonable, and does not simply proceed to rubber stamp the fees. 

This will involve a detailed look at the time spent, the purpose and relevance of each item of work and reference to the level and expertise of the surveyor in question.  The conduct of the surveyor also needs to be considered.  Nick Issac in his article articulates this argument well when he says:

‘When it comes to considering the reasonableness of fees, it is incumbent upon the person assessing that reasonableness to analyse who is responsible for the continuation or escalation of any dispute. Overly aggressive or adversarial correspondence is often, although not always, a good indicator that a surveyor is ramping up disputes rather than seeking to resolve them. Appointing owners should not be expected to foot the bill for party wall surveyors feuding about their pet party wall arguments.

Surveyors should be particularly alive to the fact that assertions of unreasonable conduct by one party or surveyor against the other, are sometimes made by the most unreasonable person involved. This is a judgment much easier for a truly independent person to reach, but an objective analysis of correspondence is generally a good starting point in determining such matters’.

One tactic open to the challenging party is to make an offer to pay a reasonable fee and to produce this offer prior to agreeing to the Third Surveyor referral.  Once made, and assuming it not agreed,  ask the Third Surveyor to reserve making a costs award at the end of his assessment until details of the the rejected offer can be communicated.  If the assessed fees are lower than the offer then there would be good argument that the cost of the referral should be visited upon the adjoining owner. This may make the adjoining owner surveyor think twice about making the referral. 

Conclusion 

No building owner acting reasonably and in accordance with the Act should be required to pay   to the adjoining owner’s surveyor anything other than a reasonable fee. If there is evidence of mischief on the part of the adjoining owner’s neighbour then there exists a duty on the party wall community to make sure the conduct is exposed and stamped upon.  To allow unfair practice of this type to continue is unprofessional, unethical and possibly criminal.  

There is really no better way to conclude than to record the wise words of warning made by James Jackson FFPWS in his editorial (Faculty of Party Wall Surveyors’ Newsletter: ‘Party Wall Surveyor‟, January 2011):

‘If the image of a party wall surveyor is that of a person charging exorbitant fees whilst offering a basic service and it seems demonstrating little in the way of skill and expertise let alone advice and guidance, it is probable that he may be considered as the twenty first century equivalent of the highwayman. There is plenty of opportunity to earn reasonable fees and make a comfortable living from party wall work. It is therefore incumbent upon members of The Faculty of Party Wall Surveyors to set examples of reasonableness, fairness and impartiality and to demonstrate to the outside world that we are possessed of a level of integrity which sets up apart from those who are only in the business to get all that they can out of it’

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Painless extraction from a Party Wall dispute - Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens (2017)

There will be times when parties involved in a Party Wall process become disillusioned with the cost and inadequacies of the mechanism for resolving and determining issues between them. They are often left feeling trapped, facing every rising fees, and looking for a way out. The problem lies with s10(2) of the Party Wall Act 1996 (Act) which prevents a party from rescinding the appointment of a party wall surveyor.

This is the situation  faced by the parties in Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens. ( 2017) HH Judge Edward Bailey. 

The facts were not unusual. 

The, Claimants, home owners ( Owners) wished to carry our development and refurbishment work to their property which included the construction of a basement.  Some of the works featured fell within the Act  as ‘notifiable’ work. 

The owners served a Party Wall Notice on the adjoining owners ( Neighbours).  The Neighbours appointed a party wall representative, the First Defendant,  Philip Antino ( Antino ),  and the Owners appointed Michael Osborne ( Osborne ) a party wall surveyor.  Antino and Osborne then in line with the usual process, agreed on the appointment of Raymond Stevens ( Stevens) , the Second Defendant,  as the third surveyor. 

The subterranean work was complex and required expert input before a re-design of the scheme was agreed and a substantive award was made in 2015.  Shortly afterwards Stevens was replaced by Mr Redler, as the Third Surveyor. 

There then followed a series of legal actions when the Owners and Neighbours fell out with each other during the course of the works.  There was also discord between the Owners and Antino and the surveyors themselves.  

In  May 2016 a mediation took place at which Antino was excluded.  

At the end of the process agreement was reached to compromise the issues between the Owner and the Neighbour. A consent order in the form of a Tomlin Order ( Order) was issued. Though the parties had agreed to end the dispute they had not resolved their differences. The Order provided a mechanism for resolving the differences then existing and any fresh issues which arose in the future. This provided for the issues to be resolved by an independent surveyor and an evaluator. 

One of those issues to be determined in this way was the reasonable fee to be paid by the Owner in respect of the services provided by Antino, Stevens and  Calder, an expert appointed by Antino to assist with the re-design of the scheme. 

Essentially,  the Order took the issues out of the jurisdiction of the Party Wall Act meaning the appointed Party Wall representatives were essentially left high and dry. 

Antino was not happy and claimed the Order  was ultra vires.  He pointed to s10(2) of the Act where it requires all appointments to be in writing and not to be capable of rescission by either party.  Antino and Stevens then wrote to the independent surveyor appointed under  the Order to express their views, and as a result the surveyor decided he could no longer accept the appointment. 

Antino then wrote to Redler and Stevens inviting them to make an award warning if they refused he would produce an ex parte award.  Stevens supported Antino. 

The Owners solicitor on learning of this wrote to Antino seeking an undertaking not to make or purport to make any award and threatening an injunction.   In addition to this Redler disagreed with Antino pointing out the Order did not rescind the appointments under the Act but rather resolved the issues which meant there was nothing further for the surveyors to resolve under the Act. As will be seen Redler was spot on with his assessment. 

Antino jumped on this communication and claimed that as there was a dispute between him and Redler this amounted to an issue under 10(12)( c) and 13 ( c) and was one which could be determined within the jurisdiction of the Act. 

Antino then wrote to Stevens inviting him to resolve 11 areas of dispute in his role as Third Surveyor.  In response the Owners solicitors applied for interim injunctive relief and pending the final hearing undertakings were supplied by Antino and Stevens. 

At the substantive hearing which came before HH Judge Edward Bailey the claimant sought a declaration that Antino and Stevens had no locus to make further awards and for an injunction to prevent them from making any awards. 

Essentially the issue to be determined was whether it was possible for parties by agreement or otherwise to contract out or avoid the operation of the Act. 

The Judge dismissed Antino’s argument that the consent order amounted to an attempted recision of his appointment, and that of Mr Stevens, and  was therefore contrary to s10 (2). The Consent Order did not, nor did it purport to rescind the appointments.  Instead the Judge found its wording made it clear that there was no longer any dispute for the purposes of s10 of the Act between the parties.  

The Parties had agreed a mechanism for considering and resolving any present and future differences so there was no longer any scope for a dispute between them.  S10 only became engaged in the event of a dispute. 

The Judge explained:

‘The 1996 Act provides a mechanism for resolving disputes; there must be a dispute for the resolution mechanism to be engaged. Once there is a dispute, whether actual or deemed, the resolution mechanism provided by the Act is mandatory. Section 10(1) is in mandatory terms, and engages “[w]here a dispute arises or is deemed to have arisen between a building owner and an adjoining owner” and providing that the owners, as ‘parties’ ‘shall concur in the appointment of one surveyor’ or ‘shall [each] appoint a surveyor’. But there must be a dispute before any appointments are made’. 

In terms of future issues it was clear there there existed a perfectly reasonable and workable  process for considering and determining these issues so there could never be any dispute for the purposes of s10.  

As for the issues which arose and existed at the time of the Order relying on the present tense used within s10(10) the Judge found that ‘…..that if a matter ceases to be in dispute there is no dispute remaining to be settled by the surveyors.’ Therefore no need for the surveyors to proceed to make an award. 

This the Judge went onto say was consistent with the Act and the policy of the Civil Procedure Rules:

‘The argument that the 1996 Act requires the surveyors to proceed to an award even where the parties have reached agreement would be wholly against the general principle that parties who are sui juris are free to make such agreements as they wish to make, provided that they are not illegal in nature. It is also against the clear policy of the CPR for the court either to restrain two parties from reaching an agreement on any subject matter which has been referred to party wall surveyors under the 1996 Act, or to hold unlawful and therefore unenforceable any agreement they do happen to make, simply on the basis that a reference has been made to the surveyors. Very clear statutory words would be required before the court would act in this way, and there are no such words in the 1996 Act. 

One might ask why were the surveyors were so keen to keep the Owner and the Neighbour engaged within the the 1996 Act.  In short, the concern was fees, and in Antino’s case the fear without an Award with his fees added he would not be able to avail himself of the summary process  within the magistrates court to seek recovery of the fee if it was not paid. 

There was no question that either party was looking to avoid payment of  the surveyor’s fees and the Judge found it perfectly reasonable for the parties to agree, as they did, that if there was any issue on this that it could not be determined outside the Act in accordance with the agreed process. The fact Antino was deprived of a particular avenue of enforcement was neither here nor there.  There was no need for an Award to be made to record the fees of the surveyors.  

The judge found :

‘In the ordinary course of events, however, it is to be anticipated that the adjoining owners will pay the fees of their appointed surveyor and any engineer engaged by them, and that the building owners will reimburse them for such payments. This provision of the Consent Order is consistent with the normal expectation on the question of fees. There is also the implication in the Consent Order that the adjoining owners will also meet the third surveyor’s fees, or part of them, and thus expect reimbursement of this expenditure by the building owners’. 

So Antino and Stevens were left fully adrift not only in the hands of other surveyors ( those appointed under the Consent Order ) in terms of the assessment of their fees, but also having to meet a substantial cost lability for losing this action. 

Practical Implications 

The practical implications here are worthy of note.  The decision has created a means for those who start off in dispute with a solution to extract themselves from the Act and/or those who operate within it, if  a stage is reached whereby a different  mechanism for resolution of the issues can be agreed.  It also helps those parties avoid the closed shop which exists between certain surveyors when it comes to determining between themselves how much they should pay each other. In this case the parties through the agreement established an independent and probably much cheaper mechanism for resolving any dispute over the amount of fee the owner had agreed to pay the surveyors and expert.  This should come as a relief to those owners and neighbours who often find themselves facing high and disproportionate fees. 

It would suggest that if parties become concerned at any time about the escalating fees of the surveyors within a party wall dispute, it is open to them to agree to end the dispute, and to refer their differences, both existing and present, to an outside mediator to consider and determine.  As the surveyors found here to their extreme cost, there is very little then can do about this apart from claiming  their reasonable fees. 

This authority also suggests that even where a dispute has arisen, there is nothing to require a party wall surveyor to proceed to make an award where, as is often the case, the parties reach an agreement, and there is no  longer a dispute between them.  There is nothing to prevent them from recording their agreement in a different form, and to implement the terms thereof, without the need for an award.  The award offers no more security than a written agreement, and is equally enforceable.

David Pett. Solicitor 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

The reversal of Caveat Emptor - Response to the Government's Call for Evidence on improving the home buying and selling process

Introduction

The Government has recently issued a Call for Evidence  on improving the home buying and selling process (http://bit.ly/2ifAsig).  This should be viewed as a pretty significant  move, especially when one reflects that, apart from a botched attempt in 2007 to make changes with the introduction of the home information pack, this country has not seen any major property legislation reform since 1925. 

The question of whether there exists sufficient political will, and indeed strength, to bring about much needed change is debatable, and only time will tell if anything comes from this initiative. It marks a welcomed start however, and will at the very least, bring to the forefront some of the major deficiencies which exist within,  what has become, a very archaic conveyancing system. 

In this response to the Call for Evidence, I will outline my thoughts on what could be done to bring about an instant and simple change, and plans which would not take too much political effort and legislative time to implement. One thing is for sure,  we will not be seeing, at least in my lifetime, far reaching and detailed changes. There is far too much vested interest, and without the full support of all stakeholders ( which was completely lacking in 2007 when HIPs were introduced ), even the strongest of Governments would find it difficult to find the courage to meddle too much.  Indeed, this is acknowledged within the Call for Evidence where the Government on commenting on what happens in certain other countries, concludes:

‘The thoroughness of the current system for buying and selling homes in England and Wales is one of its great strengths and there is no desire to completely uproot it and replace it with something else’

So what are the issues with the current system?

The Government  identifies mistrust and delay as the major issues.  There is within the Call for Evidence multiple reference to ‘Guzumping’, and the frustration home sellers and buyers experience during the process.   Mistrust and delay are clearly linked, and there is no doubt they present,  when combined, a major problem for the consumer when embarking on the conveyancing journey. 

On the subject of  delay the Government  provides us with this statistic:

‘Around 40 per cent of buyers and sellers felt that the exchange of contracts was delayed and where a delay occurred, they were likely to blame the conveyancer for the other party. When asked about how the home buying and selling service could be improved, around a third of buyers and sellers wanted a faster service from conveyancers’

This is of no surprise when you take into account the number of steps there are in the current process ( the Government highlights 70), the lack of immediate control over the role others play in the process, such as lenders, estate and management agents and Councils, and also the varying standards of the conveyancers operating within the system.   I always say to clients when asked about the time it will take, that it will all depend on who is acting for the other parties in the chain,  since I will only be able to go as fast as the slowest party permits.  

As for ‘guzumping’ I am not sure this is a widespread issue.  I believe clients are more concerned about seeing a joint commitment to progress with a transaction once an offer is accepted.  Clearly as the system currently operates, either party to a transaction can pull out, without any financial penalty, right up to the point of exchange.  This creates uncertainty, fear and an unwillingness to commit both financially and emotionally to a quick progression of the transaction.  Why pay for searches and a survey too early in the process, when there is a fear the seller may withdraw and re-market.   

So what is the proposed solution?

There is no instant or magic fix.  As I say earlier, the only way of major improvement is to start with a clean piece of paper.  However this will simply not happen, and the only hope the consumer has is that through some light touch regulation, a Government may be able to bring about some small changes which will make the conveyancing experience a little more certain and transparent. 

I say regulation will be required, since without it, as the voluntary uptake of the  Law Society Conveyancing Protocol, or rather lack of it, has shown, any hope of improvement will simply not materialise.  The limited success of the Home Information Pack demonstrated that you need to mandate and impose requirements to bring about change, and to make sure it is implemented in a uniform and strict way. 

Acknowledging as I do, that any change will need universal support from all stakeholders, and take a form which is not too out of alignment with the current process, my proposal ( which is not new), is that thought should be given to reversing the legal basis on which the sale of a property takes place.  Currently this is based on the principle ‘caveat emptor’. This means that the buyer needs to make investigations about the property before exchanging contracts to purchase. Broadly this is on the basis that, subject to certain exceptions, the buyer will take the property subject to matters that he didn’t know about, if he failed to search or make enquiry.  

This is a long established principle of law and some would argue that it is unlikely a Government would look to interfere with it.   There is some strength in this view, although in recent times it does appear the Government has an appetite to challenge its application.  Take for example, the Consumer Protection (Amendment) Regulations 2014, which, though not directly impacting on residential conveyancing, clearly demonstrates a will to impose an obligation on a ‘trader’ to be upfront and honest about everything.  Interestingly the 2014 Regulations changed the definition of “trader” as contained in the Consumer Protection from Unfair Trading Regulations 2008 to include not only a person acting for the purposes of the person’s business but also someone “acting in the name or on behalf” such a party. A conveyancer will often act “on behalf” of a client in matters such as issuing replies to enquiries, so their action may directly affect the client, and could be captured by these regulations. 

There seems to exist therefore a blue print for the imposition of a similar obligation on a seller in a residential property transaction.  

So how would this work in practice?

The onus would be on the seller to provide the buyer with a full and honest disclosure of all known ‘bricks and mortar’ and legal issues relating to the property to be sold. 

Borrowing the wording of the criminal offences created by the 2008 Regulations mentioned above, this could be implemented by imposing the following legal obligation on a seller:

• Not to provide false information or present information in a way which deceives or is likely to deceive the average consumer and, as a result, causes or is likely to cause the average consumer to take a transactional decision that they would not otherwise have taken.
• Not to omit or hide  material information or provide material information in a manner which is unintelligible, ambiguous or untimely, or fails to identify its commercial intent and, as a result, causes or is likely to cause the average consumer to take a transactional decision that they would not otherwise have taken.

I am not advocating the creation of a criminal offence, but legislation could be introduced along these lines to provide the buyer with a right to rescind the contract/claim damages, if it could be shown that the seller had not complied with these obligations. 

This would also supplement and enhance the already existing exceptions to the caveat emptor rule.  

Namely:

• Latent defects - technical defects in the quality of the legal title to a property that are not reasonably discoverable by looking at the paperwork or from inspecting the property, eg an undisclosed restrictive covenant. If they exist, their presence may allow the buyer to walk away from a transaction.

• Fraud.

• Misrepresentation - incorrect replies to enquiries that cause damage to the buyer can lead to a claim. A misrepresentation is not only an out-and-out incorrect answer but also overly distorted answers deigned to mislead. 

The change in emphasis would mean the seller would need to get his or her ducks all in line before embarking on the sale process by submitting  a contract pack. 

A prudent seller looking for certainty would probably have the property surveyed, to ensure the survey had recommendations if there were issues, and to be willing to make this available to the buyer.

Estate agents will probably argue this could turn potential buyers off.   I am not sure I agree. If the report is structured in a positive way with constructive recommendations, it would make the property more appealing to the buyer, and would avoid the cost of a late withdrawal from the transaction, which happens pretty regularly. It would also assist a seller in securing an early mortgage offer, as I suspect the lender would need to see the survey as part of the application process.  It would also lay a safer, and more secure, foundation for the introduction of a pre-exchange deposit requirement. 

I would also envisage the existing Property Information Form becoming larger in its scope, and encompass questions on the legal title, probably requiring the seller to produce the Land Registry title documents, as well as including the disclosure of any apparent title defects, together with positive recommendations by the seller on how these could be addressed.  For example, the offer of indemnity insurance. 

I could also see the Property Information Form having to be supported by the three standard property searches  - Environmental, Water and Drainage, Local Authority, together with recommendations on addressing issues which may arise from out of  each of these search results.

The search industry might wish to use this an opportunity to design a new type of search which encompasses all of the important material contained in these separate searches, but which also includes nearby planning applications  and flood data.   

I agree this involves a lot of front loading.   I also agree is smacks of the home information pack days.  We shouldn’t however be too dismissive of that effort to quicken the process, and I am sure had the legislation had the full support of all of the stakeholders, and had become law with the survey requirement still intact, it may have very well survived. 

The difference here is that the change would not be prescriptive.   The onus on the seller and the sellers conveyancer would be to make sure the seller is complying with the disclosure rules and to be made aware of the consequences in the event of a failure to adhere. All the proposal would do is to shift the emphasis for investigation away from the buyer and onto the seller. 

So what would the advantages be of this system?

To begin with, there would be less scope for delay once the transaction is commenced.  The role of the buyer conveyancer would still be to check the disclosure and to report to the buyer, and the buyer’s lender.   There may be several options for addressing disclosed defects, and the conveyancer will need to be able to advise the buyer on these. The role may change slightly.   The buyer conveyancer may become more involved in price re-negotiation on the basis of the recommendations, and the risks to the buyer proceeding in the knowledge of the disclosed facts. 

There would be less need to report issues to lenders, which often spring up late in the course of a transaction, and which nearly always lead to delay. 

The disclosure would also rule out the lengthy and sometime stressful part of the conveyancing process where the buyer asks the seller countless questions and asks for documents mentioned in search results, which often cant be found or don’t exist. It would get around the  inquisitorial and defensive approach to information that is actually readily available to the seller. 

Secondly, the obligation to disclose will almost certainly promote greater trust between the seller and the buyer.   The buyer is able to proceed knowing remedies would be available in the event of a failure to provide full and frank disclosure.  The buyer would also be purchasing in a more transparent way, and this in itself would create more certainty over choice and lead to less abortive transactions. 

Knowing more about the type of transaction at the outset will also make it easier for the conveyancer to quote for the work, and reduce the scope for fee increases during a transaction, when issues not known at the quote stage arise.  

Collating data on a property at the outset, and exposing all of its weaknesses, and putting forward solutions to address the defects, could also lead to greater speed and less cost in future transactions , if a structure for recording the issues and resolutions for future reference is also implemented ( such as a property log book ), at the same time.  It is madness that a legal title to a property is investigated time after time by different lawyers yet there is no record of what was found, and what action was taken to remedy defects.   Surely a mechanism within the Land Registry could be devised to address this, and make it easier and quicker for registered property titles to be relied on. 

Response to specific questions within the Call For Evidence

The Call for Evidence raises specific questions, and in the next part of this article I record my observations, and look to see how a reversal of the caveat emptor rule could  address some of the concerns expressed. 

Q1. Should the Estate Agency industry do more to make customers aware of how to complain? If so, how

Yes.   As conveyancers we are expected to make our complaint process crystal clear in our letter of retainer, and to set out all of the stages, including the right to refer the complaint once internal avenues are exhausted, to the Ombudsman. Why should this be any different for an estate agent. 

Q2. Should the government take further action to enforce current transparency regulations regarding disclosure of referral fees? If so, what action should be taken? 

Yes.  If there is a referral fee or a referral arrangement this should be made very clear so that the consumer knows from the start that part of the fee payable is going to the conveyancer.  Self regulation on this would not work, so thought in my opinion should be given to a complete ban of referral fee arrangements.   

The consumer often has to pay more for conveyancing due to the inclusion of a referral fee, and unless this either becomes far more transparent, such an arrangement should be made unlawful.  

There is also a major question mark over whether referral arrangements serve the best interests of the consumer.   How can one be entirely sure that the referral arrangement is not compromising the independence of the advice given by the referrer?  In short, there is little evidence that referral arrangements actually benefit a consumer. 

In the case of estate agents,  referrals also take place between other professionals, such as mortgage brokers.  The same observations apply to these arrangements. 

Q3. What would the impact be of banning referral fees? 

It would have no impact whatsoever.  Look at what happened when referral fees were banned in the claims industry.  All it will mean is that funds will be used for alternative marketing initiatives.  Consumers do not need agents to be able access assistance from conveyancers. 

Q4. Should the government introduce more regulation for estate agents? a. If so, what sort of regulation would be appropriate?

Yes, though it clear that regulation will only be effective if it is policed adequately.  Take for example the Estate Agents (Provision of Information) Regulations 1991 that requires the agent to produce  particulars of the circumstances in which the client is liable to pay fees, of the amount of the fees, and particulars of any other payments the client might have to make, for example advertising disbursements. There is plenty of information to suggest that these requirements are not being met. 

As said above,  there should be regulation brought into ban referral fees. 

Q5. What should industry do to help consumers make more informed decisions when selecting a conveyancer? a. How could government help facilitate this? 

The first step is to create greater transparency when it comes to presenting fees.  Conveyancers display their fees differently, and there is a need to standardise the presentation of quotes.   One conveyancer may, despite professional regulation to the contrary, look to hide profit in search fees/bank fees, whilst another is far more transparent and breaks those fees down. The difficulty this presents is that when comparing the fee of one conveyancer with another, the consumer is not comparing ‘like with like’. 

Regulation to reflect professional obligations could address this.  

In terms of the performance of there conveyancer there are plenty of independent review sites to which a consumer has access and which should assist a consumer making an informed decision. 

Wider publication of the recorded activity of each conveyancing business at the land Registry could also help a consumer to identify the conveyancers who work predominately in residential conveyancing.   

Q6. What improvements can be made to the process of property searches in order to speed up home buying and selling? 

There is too much data presented in these searches, and it can be quite overwhelming for the consumer when it comes to discerning what is important, and what is not.  A ‘traffic light’, and more condensed presentation, would be much more consumer friendly. 

Q7. Would there be an advantage to encouraging buyers and sellers to use the same conveyancing provider? a. If so, how could it work, without creating conflict of interest problems?

This should be avoided at all cost. The scope for conflict and the importance of receiving totally independent advice , can not, and should not be ignored, and there is no evidence that one conveyancer acting for both parties reduces cost and delay.  On the contrary it can often cause more delay and added cost, especially when a conflict arises and has to be addressed. 

Q8. How would a predominantly digital conveyancing process affect home buyers and sellers?

Tremendously.   

Conveyancers should be encouraged to embrace technology, and to make use of it, as we have done, to promote transparency and speed into every thing we do. 

All of our clients have 24/7 access to their electronically held conveyancing file, and all of the interaction we have with our clients and other conveyancers is undertaken ‘on line’. 

Our clients see post and other communication as and when it arrives and are able to view all developments in real time.

All of their data and documents is securely retained in a property log book to which they have lifetime access. 

This is the future of conveyancing, and the benefits to the consumer, and indeed to our business are immense and far reaching. 

Feedback has been very positive, and we are constantly seeing clients returning to us. 

‘Data rooms’ are already the norm in the sale of new build property, and with the proposed shifting of the onus from the buyer to discover, to the seller too disclose, technology of this type would clearly help. 

Q9. What should the government do to accelerate the development of e-conveyancing? 

Conveyancers need to wake up and look to make use of all of the technology which already exists within the market.   They also need to make a shift in mind set.  Too much tradition is holding back many conveyancers from embracing technology.  The large majority of those looking move home expect or will be expecting conveyancers to be making use of technology . 

All Government can do is to made public bodies more technologically accessible, in the hope by doing this, the benefits of e-conveyncing will be difficult to ignore, even for the most traditional of businesses. 

Making it easier and cheaper for businesses, like our own, to connect to public data holders, such as the Land Registry/Councils, and to also provide funding to make technology more accessible to smaller conveyancing businesses, is a must. 

To also offer reduced registration fees to conveyancers who use technology to interact with the Land Registry. 

To make more use of the Land Registry Title Register by including additional features such as:

• The existence of indemnity insurance if taken out to address a title defect
• The history of prior transactions and details of the conveyancers who acted on each transaction
• ‘Live viewing’ of the register to enable to see pending registrations  
• Public adopted highway markings on the title plan
• Interactive mapping to be able to see a summary of the titles of surrounding land 

Putting more pressure on councils to digitise data and make this more accessible to conveyancers who wish to access it direct is essential. 

Q10. Are there any particular public sector datasets which you think should be released as open data in order to drive innovation in the home buying and selling process? 

Yes.  See above. 

Q11. How could other parts of the home buying and selling process be improved through better use of digital technology?

Technology could be used more effectively by lenders in terms of it communication.   Many of the large lending institutions still rely on fax to communicate.   The development of online portal to facilitate the sharing of data and communication would reduce delay and help to combat fraud. 

A lot of delay is caused at the outset in carrying out client due diligence.  At present the consumer could be subjected to these checks not only by the conveyancer, but also be the lender, the mortgage broker and the estate agent.  Unnecessary duplication that could be addressed with greater intelligence sharing using technology. 

Q12. What more could be done to encourage borrowers to seek a Decision in Principle from their preferred lender before they start house hunting? 

  

The idea of reversing the caveat emptor basis for selling would make it easier for the decision to be obtained, as all the information the lender, and indeed borrower, would need to know about the proposed security would be available  at an early stage of the process. 

Q13. What other improvements could be made to the process of applying for and obtaining a mortgage? 

See reply to Q11. 

For greater protection against fraud, lenders do need to be more willing to share intelligence with panel conveyancers and to do this electronically.  At the very least, the conveyancer should have early sight of the mortgage application form and mortgage valuation report.   

Q14. How do we ensure buyers and sellers are able to access good guidance on buying and selling homes?

There is already a  wealth of good and reliable information in the public domain.

The Government  could do more to promote the benefits of choosing  a conveyancer  who belongs to a respected association such as the Conveyancing Association or the BOLD Group, and or is endorsed by the Law Society’s Conveyancing Quality Scheme. 

Q15. Should sellers be required to provide more information before they market their property? a. If so, what information should be provided? 

This is covered in some detail above. 

Q16. Should sellers of leasehold homes be encouraged to engage with their freeholder before marketing their home for sale? a. If so, in what ways should they engage?

Yes.

If as we propose the onus is on the seller to provide upfront disclosure, then in addition to the survey, extended property information form, the seller would need to provide the lessor pack from the freeholder/managing agent, and make this available to the buyer. 

Again, this would save time once the transaction is up and running. 

Q17. How can government increase commitment to a sale between buyers and sellers? a. Would development of standard agreements help? 

The idea of a pre-exchange deposit is a good one.  

By providing information about the property and the legal title upfront the buyer is far more informed, and in this case would be more inclined to pay a ‘pre-contract’ deposit to show commitment.

Q18. How should we best tackle guzumping? 

Generally though building more affordable housing.   Guzumping occurs due to a shortage of property, particularly in London. 

By allowing a deposit to be taken after the delivery of the contract pack, and before exchange, should reduce the scope for guzumping, assuming the size of the deposit acts as a sufficient deterrent 

Q19. What other steps could be taken to increase confidence in the housing chain?

This is covered in greater detail above. 

Greater transparency through the delivery of upfront information and documents is the key. 

Q20. Should managing agents / freeholders be required to respond to enquiries within a fixed time period? a. If so, how could this be done? 

Yes. 

By making sure the seller has the information before a contact is submitted to a buyer.    Making it a requirement that the information has to be delivered within say 28 days of request, and that if it is not, then no fee can be charged, would clearly focus the attention of the agent. 

Q21. Should maximum fees be set for the services and information provided by managing agents / freeholder to home buyers and sellers? a. If so, how could this be done?

Yes. 

There should be a set fee for this information,  and some of the data should be make available free, especially data which does not change from one transaction to another.  For example:

Notice of Assignment requirements 

Draft Deed of Covenants

There should also be a requirement which prevents a freeholder/managing agent from registering a restriction without recording on the Land Registry title document, the requirements needed to remove it or comply with it.  Too much time is wasted chasing for this information. 

Q22. Should the government introduce standard mandatory forms for collecting information about leasehold

Yes. 

The LPE1 form is adequate and fit for purpose,  and all providers of information should be required to submit the data in this format.

Q23. What can be done to improve the customer experience of buying a new build home? 

This is an area of home selling which needs to be looked at closely. 

There is is not enough transparency within those who feature in the selling and  buying of new build property. 

The developer and selling agents should be required to disclose any arrangements they may have with brokers and solicitors to whom they direct buyers.  More than often the arrangements between these stakeholders is not transparent,  and questions of true independence often arise. 

The paying of a reservation fee should also be subject to a ‘cooling’ off period. 

No property whether built or not at the time of sale, should be marketed without full details of the legal tenure, the main features of a lease ( if applicable), ground rent and review details, service charge and the last date by which the property will be ready to be occupied.    There is far too much uncertainty around what the seller is looking to sell, and when the property will be ready to move into. 

There should be a ban on the seller being able to charge the buyer a fee for the engrossment of documents. 

The documents provided by the sellers solicitors are extensive, and often make little sense to the buyers solicitors, let alone the consumer.   A legal summary should be prepared and made available.  The reversal of the caveat emptor rule here would provide the consumer with greater certainty and comfort. 

Q24. What more can be done to help buyers of new build homes quickly secure a mortgage offer? 

Allowing the consumer the freedom to search the whole market and not the market controlled by the tied broker would be a good start.  Too much pressure is exerted by the selling agent to make sure the consumer does not go outside the ‘group’ of the developers preferred partners. 

Clearer information about the development and the construction should be made available to the consumer at the point of viewing, so that this can be passed onto a prospective lender. 

Q25. What else should the government be doing to help improve the home buying and selling process, and reduce the cost for consumers?

Incentivising the conveyancing industry through ensuring the conveyancer is not the least remunerated stakeholder in the process. 

I accept there needs to be competition, but to expect the conveyancer to make the consumer’s journey quicker and less stressful, and to embrace technology for this purpose, surely there needs to be some recognition that the role the conveyancer plays is a valued one. 

By making the rewards for the conveyancer fair and more in line with estate agents, brokers and surveyors, surely this would encourage more experience to return to the market, and also allow conveyancers to re-invest more into making sure the system works and works well, and is developed using technology. 

Most conveyancers work on fixed fees.  This means the longer the transaction takes the less money they make.   More than often they make a loss.  Most conveyancers when they compare the time it takes to complete a transaction with the fee charged, are seeing the hourly rate come out at between £30 and £70.   Compare this with the hourly rate, for example, with that of a surveyor who would be collecting  around £170 per hour.

Some form of scaled fees tied into the value of the property with lower and upper limits should be considered. 

I acknowledge that this Call for Evidence is about the Consumer.   However, a better quality and more expeditious service depends largely on those working within the system and on the resources they have available to operate and improve their service.  Conveyancers should not be left to fester at the end of the ‘food chain’. 

This is a public response to the Government’s  Improving the home buying and selling process - Call for Evidence issued by Department for Communities and Local Government in October 2017, prepared on behalf of MJP Conveyancing Limited By davidp@mjpconveyancing.com on 10th November, 2017. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com