055 The Practical Implications of Hart v Large

A case that goes back to 2011, Heart v Large recently came to a climax, raising a number of issues that have sent shivers down the collective spines of the residential sector. Settled out of the court, the resulting level of damages was awarded against the surveyor. 

We gathered a panel of participants to discuss the case but also the practical implications for surveyors.

The Panel

Leslie Milson is a Chartered Valuation Surveyor and RICS Registered Valuer undertaking all manner of formal residential valuations, Homebuyer Reports and Building Surveys. She works for Watsons Property.

Tim Jones, a Chartered Building Surveyor, BlueBox Trainer, RICS APC Trainer, Chair, Assessor and SAVA Assessor, who specialises in residential building surveys and valuation advice. 

Geoff Hunt is a sole practitioner based in Somerset, specialising in pre-war and listed building pre-acquisition surveys and defects. He is the author of The Defects Timeline and of Residential Building Defects.  

Phil Parnham is a Chartered Building Surveyor with an expertise in the diagnosis of defects and dampness in residential properties. He has many years of experience in the social housing, higher education and residential sectors and is one of the founders of BlueBox Partners.

John Brownlow is a Director in the practice of Edwards Genesis (Chartered Surveyors), a Director of Brownlow Associates Ltd (Chartered Surveyors) and a Partner in Hampson Moore (Consultant Surveyors & Valuers). He is also an RICS Registered Valuer. 

Marion Ellis is the founder of The Surveyor Hub and Women in Surveying Initiative, as well as Managing Director of BlueBox Partners. She is currently leading The Surveyor Hub Mastermind.

The Hart v Large Case

Phil Parnham started by summarising the details of the case. 

“A practitioner did a Level 2 homebuyer report of a large recently renovated stroke rebuild property on the south coast on the cliff top,” he explains. “That report was given to the clients, there were some discussions with the clients post report delivery. Loads of defects became apparent over the next few weeks and months, resulting in a virtual rebuild of this quite prestigious property.”

“I think a lot of other people thought that the court would be in the surveyor’s favor,” Leslie continues. “And it was a shock to me that it wasn’t. My first thought was, that could have been any one of us. We never go out to do a bad job or to miss a defect. Now that we’ve learned a little bit more, it seems even more unfair because of the legal aspects of it and how the barristers tie you in knots, rather than the actual facts, some of which I think weren’t that accurate. So where does that leave us?”

“I can understand why they went after the surveyor, the architect and the solicitor, but I can’t understand why they didn’t go after the contractor,” Tim wonders. “This was work done by a contractor, there would have been some form of contract in place, and some form of liability would, in theory, flow through to that contract.”

Working With the PCC – Professional Consultant’s Certificate 

Among other things, the Claimants alleged that the surveyor was negligent by failing to recommend, in his report, that a Professional Consultant’s Certificate should be sought. What is a PCC and when should it be sought?

“The key learning point is centered around the PCC certificate,” Phil says. “How can somebody buying a property be reassured about its quality? For me, the PCC results are a confirmation that our professional is designed and supervised. I think the UK Finance and Builders Sites Association all require a PCC that involves a professional saying, yes, I’ve visited the site, I’m confident it’s been done in accordance with the specification, building regs, etc. As a sector, we’ve just got to take one step back and say, what do we expect a Professional Consultants Certificate to provide?

“PCC is not an absolute guarantee,” John explains, “but it gives that comfort that somebody has been involved, and that the builders or developers haven’t just been given free rein to do what they want and shop whenever they want.”

“I think the irony is,” Geoff continues, “is that even if the vendors had got these certificates, they’re not warranties. From what I understand what the defects were, none of those certificates would have suggested that those things are wrong. In fact, they’ve given completely the opposite impression that everything was fine. And here we are saying, are they worth anything?”

“Where this case blows doors open,” he adds, ”is that up until now, a surveyor was not liable for things he’d never seen. This is the case of one, if you don’t ask for a certificate, you will now be liable for everything. And that to me seems to suggest a bit of an ongoing trend that people are losing faith in the certificates and they’re going to make the last person who looked responsible.”

“What was partially missing in the Heart case, is that the recommendations were made to get PCC but almost in hindsight and not very loudly,” Phil explains. “And I think we’ve just got to be clear in our reports about what we are recommending. The summary at the start of most standard reports should say, as long as you’re prepared to accept the repairs and maintenance, identify them, then it’s a reasonable purchase. We need to say, this is a complex property and you must see some evidence of PCC or its equivalent. If not, then the risk of the defects will be high. I think that’s where we’ve got to use our surveying skills, and our technical knowledge to identify building complexity and that the risks are high.”

“When you’re talking to your client, part of the problem is you’ve got to put it in a language that they understand,” Geoff agrees. “I think one of the key things about this case is when you start to look at a property and you start to think, that’s not quite right, you’ve got to keep digging. So if we checked to see if the PCC certificate was issued, and we get silence, then that might be telling us an awful lot about this house.”

How to Apply the Home Survey Standard

Panelists continue discussing the Home Survey Standard and how should it be applied properly. At the same time, surveyors often feel pressured to hand in their reports quickly. Does quick turnaround time allow time for reflective thoughts?

“I think what the home survey standard really focuses on is working with the client,” Phil explains. “Surveyors need to try to connect with their clients, and then also be very clear about what service the practitioner can offer, what their skills and abilities allow them to. That’s the good thing about the Home Survey Standard.”

“Sometimes the less experienced surveyor somehow gets the impression that you’re only supposed to look for the big things and not worry about the rest,” Geoff says. “Just because you’re doing a Level 2, you must look as hard when you’re doing a Level 3.”

“I find that the more discerning client takes comfort in you saying, well, this is complicated,” Leslie says. “It’ll take me time, I don’t want to rush it, I want to get it right. That is just about interacting with the client.”

How to Limit the Surveyor’s Liability

What can the surveyors do to limit their ability? One of the ways to do it is a liability cap, which seeks to allocate risk and reward between the surveyor and the client. The panelists continue going over the lessons that can be learned from the case. 

“You must put a cap on any liability – this is in our RICS course,” Tim says. “My view is that it’s probably not worth the papers written on because if you’ve put a 50 grand cap on and there’s a million quids worth of damage, if they find you at fault, they’re going to go after you for a million and will probably find some legal ease to say that 50 grand cap was neither here nor there.”

“I would just add, don’t be rushed,” John says. “Clients can be a pain, but most of them can be managed. If you’ve got some doubts, tell the client that. Put it in context, say this is a complicated building, it got this stuff and this could lead to that. I’m not saying don’t buy necessarily, but bear in mind that if you do buy it, and these three things fall into place that start a line, you might end up with a big bill.”

“If you’re new to the game, this is a big bump in the road,” Geoff continues. “As a professional surveyor, you will make a mistake. And if you have made a mistake, and you are dealing with a claim, there are loads of people out here that have been in the same boat as you.”

“If you can consider acting in a case against a fellow professional, think twice, because you could be on the other end at some stage,,” John says. “It’s not just surveying, there may be too many people out there to try and kick somebody while they’re down. I would always rather try and defend this then attack. But you do sometimes get to the point where you can’t defend the indefensible. Better to be honest and say, look, you did make a bit of a mess, let’s try and get the best we can. We need to watch each others’ backs, this is a tough job.”

Panel Hosts

Marion Ellis

 

Phil Parnham Director
Phil Parnham

Connect with Leslie Milson

– LinkedIn https://www.linkedin.com/in/leslie-milson-mrics-rics-registered-valuer/

Connect with Tim Jones:

https://www.atherstonestjames.com/

– LinkedIn http://uk.linkedin.com/pub/tim-jones/2a/a20/313

– Facebook https://m.facebook.com/Localbuildingsurveys/

Connect with Geoff

https://www.geoffrey-hunt.com

– LinkedIn https://www.linkedin.com/in/geoffreyhunt/

Connect with Phil Parnham:

– LinkedIn https://www.linkedin.com/in/philparnham/

– Twitter https://twitter.com/philparnham/

– BlueBox https://www.blueboxpartners.com

Connect with John Brownlow:

– LinkedIn https://www.linkedin.com/in/john-brownlow-47375052/

Resources:

– Hart v Large: Important guidance for surveyors when advising prospective purchasershttps://www.rpc.co.uk/perspectives/real-estate-and-built-environment/hart-v-large-important-guidance-for-surveyors-when-advising-prospective-purchasers/

– Hart v Large Case Update https://www.rics.org/uk/news-insight/latest-news/news-opinion/hart-v-large-case-update/

– The Surveyor Hub Community https://www.facebook.com/groups/the.surveyor.hub.bluebox.partners