Litigation "Time-Bomb" Regarding Surveyors’ Reports Awaits
A litigation time bomb could be on the horizon, as surveyors’ reports increasingly include property photographs distributed to third parties without the owner’s permission.
Garrett O’Hanlon, Director of MAP Chartered Surveyors issued the warning when he pointed out that reports are sent to one or more potential buyers who, in many cases, do not proceed with the purchase. In making his statement, he said:
“My 30-plus years of experience of asking people if we can take photographs is that most don’t mind you retaining these for your records, but certainly do not agree to them being issued in reports."
“In rare cases, some vendors do not even want pictures of their properties taken, either because of a family situation or because the property has valuables in it.”
O’Hanlon goes on to state that he first became aware of the potential for litigation by owners some time ago:
“This worrying naivety is something I raised with the RICS several years ago, and they agreed with me. Yet no guidance was ever issued, and it is still happening on a daily basis.”
In light of the fact that surveyors have no contractual relationship with the householder, if they intend to use the pictures in reports distributed to third parties, they should therefore get the owner’s written permission for photographs to be taken, which simply doesn’t happen.
“My concern is that some surveyors do insert some or all of their pictures in reports, while never having obtained the vendor’s permission. Is this a time bomb waiting for one wise vendor to set off a litigation cascade that estate agents and mortgage brokers, who recommend the surveyor, could easily get dragged into?”
O’Hanlon said that because so many lenders no longer instruct surveyors to visit properties, relying instead on desktop valuations, more buyers are getting their own surveys done.
He said that one major bank does not instruct a survey in 50% of all remortgage cases, and in 35-40% of purchase cases:
“As a result, 22% of buyers are now getting their own surveys done, up from 10% a few years ago”
He is also concerned that a number of new products now emphasise that they are 'picture based'. O’Hanlon said that while estate agents – who do have a contractual relationship with the property owners – take a dozen or so pictures, surveyors can take dozens, or even hundreds:
“My personal record was 767 photographs, although it was a big house. Typically, we will take 100-150, because we are looking for a complete record of the property – corners, lofts, pipework, etc.”
He warned that with fewer mortgage valuations and more estate agents and brokers involved in advising people to get a survey, the last thing they would want is to be drawn into litigation through illegal insertion of photos in reports by the companies they have recommended:
“Surely any agent or broker recommending a surveying company should protect their position and make certain that any surveying company will not issue photographs in reports without written permission from the seller.”
What are your thoughts as to this 'litigation tomb-bomb' as referred to above?
Please feel free to comment and let me know your thoughts. Alternatively, for more information as to residential or commercial property, please feel free to contact me directly:
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The view expressed herewith is exclusively my own. The contents of this article is not legal advice and should not be relied upon as such. Please note no attorney-client relationship shall be formed should any adverse consequence arise from reliance upon the information provided within this article.
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