Ombudsman Services: Property

The Ombudsman Services: Property, set up to sort out complaints about chartered surveying firms, surveyors, estate agents, residential managing agents and other property professionals from consumers using their services.

They were originally set up ito handle complaints about members of the Royal Institution of Chartered Surveyors (RICS). Until April 2010 we were called the Surveyors Ombudsman Service.

They have been approved by the Office of Fair Trading (OFT) as an estate agent redress scheme

http://www.surveyors-ombudsman.org.uk/

Re: Email from Robin Ainsworth (PWS) to Building Owner`s Scott Harrington PWS 14 September 2009

From: AinsworthSSL [mailto:ainsworthssl@btinternet.com]
Sent: 14 September 2009 08:14
To: 'Scott Harrington'
Subject: RE: P P, Liverpool - no.


Scott

Hope you enjoyed your long week-end away.

Had another long telecon with Mr XXXXXXXX on Saturday, initially enquiring if I had received his written appointment but mainly relating to background history and various neighbourly issues.

He disputes the notified works on the ground that the works to ensure the protection, weathering and stability of his property were not adequately specified in the notice for him to consent. He wants me to make it perfectly clear however that he is happy to extend every facility to ensure his property is protected from damage by the proposed works, both in the short term and re its long term stability thereafter. He appreciates that this will include examining the form of construction of his property, the relationship between the two properties and of course a record of its current condition.

I await advice of what the engineers have already ascertained from inspection of number XX, particularly in respect of the basement depth which Mr XXXXXXXX reports as being significantly deeper than that in XX.

Given the concern expressed over the condition of the properties generally, I think it would be prudent to be aware that Mr XXXXXXXXXX’s property is not insured and therefore he advises we must enter his property at our own risk. He has asked me to advise that he does not have keys to the street hoarding, torches will be necessary as there is no lighting (at least in his basement ???) and that we should wear suitable protective clothing.

Mr XXXXXXX also advises that his property is listed, which will give the added requirement that any works proposed to number XX to stabilise it (including to the party wall if indeed that is what it is) will have to be acceptable to the relevant conservation bods and this should be considered by the engineers designing any necessary stabilisation works. Contact details can be provided if necessary.

Finally, Mr XXXXXXX has indicated that he is likely to authorise me to deal with any other neighbourly issues that may arise but only as and when they are identified (i.e. not a general agency authority) subject to suitable undertaking(s) in respect of his costs in responding to such issues.

Hopefully we can start the ball rolling on Friday.

Regards

Robin Ainsworth


Ainsworth Surveying Services Ltd
Conifer House
5 Vernon Avenue
Eccles
Manchester
M30 0UE

Tel: 0161 789 4194
Fax: 0161 707 5066
E: AinsworthSSL@btinternet.com

Re: Email from Robin Ainsworth (PWS) to his Client 31 October 2009

From: AinsworthSSL [mailto:ainsworthssl@btinternet.com]
Sent: 31 October 2009 12:01
To: XXXXXXXXX
Cc: 'Scott Harrington'; Subject: FW: XXXXXXX

XXXXXX

This is a necessary and reasonable Party Wall etc Act communication.

Please find below mail received yesterday.

The proposal seems to me to be reasonable and will minimise inconvenience to you (although so as to preserve your own post-works security I would consider as reasonable a counter-suggestion that they provide new padlocks and issue you with a key for the duration of the works, after which your own padlocks could then be replaced by you)

I believe this constitutes notice under section 8(4) of the Act to enter your property.

As such (particularly given your previous comments) I would ask you to respond as a matter of urgency and certainly within 14 days (the notice period specified by the Act).

In case you are not aware of it, I should perhaps draw your attention to the provision of section 8(2) of the Act which states: If the premises are closed, the building owner, his agents and workmen may, if accompanied by a constable or other police officer, break open any fences or doors in order to enter the premises.

I await your response.

Regards

Robin Ainsworth

Ainsworth Surveying Services Ltd

Re Email to and reply in red from Robin Ainsworth (PWS) 30th October 2010

Email to Party Wall Surveyor Robin Ainsworth and his reply to his client in Red

From: XXXXXXXXXX
Sent: 30 October 2009 17:50
To: AinsworthSSL

Subject: Party Wall

Dear Robin,

further to our telephone conversation today. I confirm the Conservation Officer has confirmed to me that any works to XXXXXXXX will require Listed Building Consent and the XXXXX have been contacted by the Conservation Officer regarding this approval, but no application has yet been received. Could you please confirm the a copy of the proposed works has been provided to Building Control and whether all statutory approvals have been obtained or applied for.

No. That would be for the building owner to do, not the Party Wall Surveyors. The Act requires that all works in pursuance of the Act shall comply with the provisions of statutory requirements, however it is not a Party Wall Surveyor’s job to police any such requirements.

I am concerned that you mentioned I will be prosecuted under the Party Wall Act if I refuse access to my property for the bolting works to the upper floors of the gable wall to be carried out because I have been informed that I will also be prosecuted for allowing works to my listed building without first obtaining Listed Building Consent.

I did not say that. Please take care not to misquote me.

I told you that you were not “allowing” or “agreeing” anything – the building owner is exercising his statutory rights and this is imposed on you not agreed by you.

I then said that it is an offence under the Act to obstruct someone from doing something they are entitled to do under the Act and which would include allowing necessary access to your premises to carry out the awarded works.

HOWEVER - Clearly if the works they want to carry out do not comply with statutory requirements then they are not entitled to do them and therefore not entitle to access for that purpose.

I understand LBC will take eight weeks to obtain and I have only 14 day to appeal under the Party Walls Act. I am unsure whether LBC and Building Control approval requires to be granted under the award and whether I need to appeal if it has not been. Could you please advise regarding this matter.

No, LBC & BC approvals are governed by other legislation – therefore the absence of such approvals does not invalidate the Award – which requires that such other statutory requirements are complied with – the PWeA is not there to enforce other legislative requirements, nor vice-versa.

Could you also advise whether I am entitled to be reimbursed for legal representation regarding the Party Wall matters.

If you wish to take legal or other advice then that is a contractual issue between you and your consultant – and as advised to you before you appointed me, your costs in respect of my time-charges are your responsibility - only what is necessary and reasonable for determining the statutory dispute would be ‘reimbursed’ under the Act by making the building owner responsible for those costs. Except for the additional work defined within the Award the statutory dispute has been determined.

If you wish to challenge the Award then that is a civil issue and the legal or experts costs you incur in taking such action would usually be dealt with by the courts (often but not always on the basis that the loser pays the winners costs or some part of them). You should however seek a lawyer’s opinion for advice on the common law.

As you are aware my main concern is the removal of the support currently provided by the front and rear walls of XXXXXXXX and the possible wind suction effect on the gable wall. As my building has very few transverse beams into the gable wall and only the ground floor and attic beams where strapped to the gable this means the first and second floor beams are not fixed into the gable wall and if movement occurs there would be nothing to restrain them.

You should read the Cundall specification and method statement carefully. It has been prepared by a qualified Chartered Engineer and neither I nor Scott Harrington saw any reason to question the proposals as being inadequate. If you wish to seek independent opinion to prove that the specification provision are inadequate, substantiating an appeal against the Award, then you are free to do so, the costs of which may be recoverable in the civil action of appeal.

I would prefer the exposed gable wall was rendered to prevent water penetration and weathering of the exposed former internal walls as only lime mortar pointing is planned for this section of the wall and it was formerly an interior wall and the quality of bricks may not be adequate for external exposure.

As indicated in the Award, the extent of making good and necessary weathering will be determined by the appointed surveyors upon post demolition inspection when the wall will be visible. I will not pre-judge that inspection.

Regarding support to the front and rear walls could you please send me details of how this is to be ensured and any structural reports or calculations you may have been provided with by Scott so I can forward them to the Conservation Officer.

Your building was constructed as an independent building, albeit the adjacent flank walls of XX and XX are now bolted together. I see no reason, and one assumes neither does Cundall’s engineer, for the front and rear walls to be supported other than as specified in the method statement. There are therefore no calculations.

As discussed I have copied the Conservation Officer into this email to explain my concerns regarding possible prosecution under the PW Act and LBC, as I feel as though I am in a no win situation because I will be liable for prosecution if I allow the works without LBC and also prosecuted, as you mentioned under the PWA if I refuse.

Your statement is incorrect – see above. I trust you will also forward this response to the conservation officer so that he is fully informed.

Would it be possible for the third surveyor to be advised on the matter, as clarification regarding the adequacy of the bolting of the gable walls and loss of support provided by the front and rear walls of XXXXXX considering the lack of restraint afforded to the gable wall and beams is urgently required.

You can refer any matter in dispute to the third surveyor, however the appointed surveyors have by way of their Award already determined the dispute. The third surveyor cannot alter what has already been done as this is the sole prerogative of the courts by way of appeal against the Award – within 14 days.

Thank you for offering to provide digital copy of the award, specification and method statement for me to send to the Conservation Officer. I will send him a copy as soon as I receive it.

I did not ‘offer’ this – I complied with your verbal and written request.

Regards

XXXXX

Re Email from Robin Ainsworth (PWS) 31th October 2009

From: AinsworthSSL [mailto:ainsworthssl@btinternet.com]
Sent: 31 October 2009 11:25
To: XXXXXX
Subject: RE: Party Wall


XXXXX

Comments to the specific points of your posting are shown in red below.

Please note that except for matters reserved in the Award, my ‘advice’ and responses to you are by way of a consultant.

I remind you of my pre-appointment comment that if you wished to delay the statutory process or use it to delay or prevent the proposed works then you should appoint someone else.

I also refer you to my letter of 4th September confirming my terms and that you are contractually responsible for my time-charges, although reasonable costs in determining the statutory dispute under the Party Wall etc Act will likely be determined the responsibility of the building owner.

That dispute, excepting the reserved matters, has now been determined by Award.

I believe I have adequately fulfilled my statutory duties and will continue to do so on the reserved matters.

After having several very long phone calls with you, it has become clear that you are not happy with the outcome of the party wall negotiations, challenge almost every aspect of the technical issues of the method statement prepared by a Chartered Engineer and accepted by two Chartered Surveyors, misunderstand and/or misquote and/or misrepresent matters discussed by telephone, and you now wish to challenge the Award or refer determined matters to the Third Surveyor.

I have provided you with e-copy of the Award documents to assist in your liaison with the administrators of other legislation.

I have responded in some detail to your most recent mail, although this is primarily clarifying what has been previously discussed by phone on more than one occasion.

The majority of the time expended on these calls and the time in preparing this e-mail cannot be ‘recovered’ from the building owner, but has not and will not be claimed from you.

I must however now draw the line.

Any further time expended in giving further ‘advice’ or ‘opinion’ at your written or telephoned request, or assisting in any way with your challenge of the Award or other legislative requirements, will be recorded and invoiced in full.

If you do not wish to pay my time-charges as per my terms identified to you before my instruction, then please do not request my further involvement or the benefit of my expertise.

Yours sincerely

Robin Ainsworth

Ainsworth Surveying Services Ltd

Re Email from Robin Ainsworth (PWS) 20 October 2009

From: AinsworthSSL [mailto:ainsworthssl@btinternet.com]
Sent: 20 October 2009 12:53
To: XXXXXXX
Subject: RE: Email to XXXXX

XXXX

Things are moving forward slowly, although every comment I have made has been accepted and acted upon.

It is not usual for a PWS to send draft documents to his appointing owner, however given the sensitive nature of this case and my limited power as a PWS to deal with other related issues I feel it might be beneficial for you to be kept abreast of progress.

I therefore attach a revised draft of the proposed Award, which is awaiting some further information – primarily the agreement of the specification / method statement.

The current draft of the specification / method statement alone is also attached – with my comments in blue, XXXXXXXX ’s responses in green and XXXXXX’s conservation consultant in red. The queries still need to be addressed by the Engineer.

N.B. you must not copy these draft documents to any third party as they are incomplete and have no legal standing at this time.

I have also received a copy of the contractor’s certificate of insurance, although any claim for damage to your property would be addressed to XXXXX and not the contractor.

If you have any queries please let me know or call to discuss.

Robin Ainsworth

Ainsworth Surveying Services Ltd

Conifer House
5 Vernon Avenue
Eccles
Manchester
M30 0UE

Tel: 0161 789 4194
Fax: 0161 707 5066
E: AinsworthSSL@btinternet.com

Re: Email To Robin Ainsworth (PWS) 30th October 2009

Email to Mr Robin Ainsworth from his "Client"

From: Mr Robin Ainsworth`s Client
Sent: 30 October 2009 17:50
To: AinsworthSSL

Subject: Party Wall

Dear Robin,

further to our telephone conversation today. I confirm the Conservation Officer has confirmed to me that any works to XXXXXXXXX will require Listed Building Consent and the BO have been contacted by the Conservation Officer regarding this approval, but no application has yet been received. Could you please confirm the a copy of the proposed works has been provided to Building Control and whether all statutory approvals have been obtained or applied for.

I am concerned that you mentioned I will be prosecuted under the Party Wall Act if I refuse access to my property for the bolting works to the upper floors of the gable wall to be carried out, because I have been informed that I will also be prosecuted for allowing works to my listed building without first obtaining Listed Building Consent. I understand LBC will take eight weeks to obtain and I have only 14 day to appeal under the Party Walls Act. I am unsure whether LBC and Building Control approval requires to be granted under the award and whether I need to appeal if it has not been. Could you please advise regarding this matter. Could you also advise whether I am entitled to be reimbursed for legal representation regarding the Party Wall matters.

As you are aware my main concern is the removal of the support currently provided by the front and rear walls of XXXXXXXX and the possible wind suction effect on the gable wall. As my building has very few transverse beams into the gable wall and only the ground floor and attic beams where strapped to the gable this means the first and second floor beams are not fixed into the gable wall and if movement occurs there would be nothing to restrain them.

I would prefer the exposed gable wall was rendered to prevent water penetration and weathering of the exposed former internal walls as only lime mortar pointing is planned for this section of the wall and it was formerly an interior wall and the quality of bricks may not be adequate for external exposure.

Regarding support to the front and rear walls could you please send me details of how this is to be ensured and any structural reports or calculations you may have been provided with by Scott so I can forward them to the Conservation Officer.

As discussed I have copied the Conservation Officer into this email to explain my concerns regarding possible prosecution under the PW Act and LBC, as I feel as though I am in a no win situation because I will be liable for prosecution if I allow the works without LBC and also prosecuted, as you mentioned under the PWA if I refuse. Would it be possible for the third surveyor to be advised on the matter, as clarification regarding the adequacy of the bolting of the gable walls and loss of support provided by the front and rear walls of XXXXXXXX considering the lack of restraint afforded to the gable wall and beams is urgently required.

Thank you for offering to provide digital copy of the award, specification and method statement for me to send to the Conservation Officer. I will send him a copy as soon as I receive it.

Regards

XXXX