Survey and Layout

Survey and Layout

Defects form one of the primary causes of dispute and construction litigation. The individuals dealing with the failures in construction requires certain degrees of familiarity with the law, building technology, and practice. Disagreements always arise when determining the construction defects. The differences occur due to varied viewpoints and interests of those asking the question or making the determination. The different parties include the developers, builders, manufacturers, suppliers of the materials, and the homeowners. The damages that occur from these defects have significant impacts that may consist of the damages to the job, for instance, physical injuries to the workers or any other faultiness in the outcome of the project costing the involved parties money or liability issues. In certain circumstances, the surveyors get caught up with such defects in construction. Most surveyors get hired by the contractors on behalf of the homeowners or owners of the project. These defects have recommendations that, when observed, may limit the damages. However, due to negligence and other associated loopholes in decision making, the surveyors find themselves in difficult situations when the damage gets done. The paper offers examples of surveyor defects that resulted in a liability issue and provides recommendations to the remedy.

In the case of Smith-v-Eric S Bush (A firm) 1990, a surveyor was contracted with a lender and given the responsibility to survey a small domestic dwelling (Wilson, 2007). The surveyor prepared a report after the valuation of the houses that the lender forwarded to the borrower. The report, however, contained a disclaimer of liability to the borrower regarding its accuracy and suggested that the borrower should obtain independent advice. The borrower realized these defects in the report that were as a result of the negligence of the surveyor. The act of negligence was brought against the surveyor, who depended on the disclaimer, limiting his duty to the borrower (Wilson, 2007). The actions of the surveyor resulted in a liability issue to the borrower due to negligence. Based on the surveyor laws and practice, when a surveyor gets involved in a contract with a client, they should not only consider the instructions obtained from their client but should also consider who may reasonably rely on their advice. The borrower suffered a loss due to the inaccuracy of the report given by the surveyor. The surveyor did not act on his capacity or employed his practice and skills on the valuations. Instead, he only considered the instructions that were given by the client. He served on the interest of the client and against the survey laws. The action resulted in liabilities on the part of the borrower.

The surveyor’s practice based in duty owed under the contract illustrates that in the absence of the agreed terms to the contrary, the surveyor gets compelled under an obligation to his client under the contract to practice reasonable care and skill. The surveyor ought to have acted depended on his abilities and the provisions of the surveyor contracts. The practice gets measured by the actions of a reasonable competent chartered building surveyor. In an instance, when a dispute occurs, an independent surveyor is compelled to offer evidence as an expert witness, as to the practices of a reasonably proficient chartered building surveyor. The same responsibility should be owed to in negligence whether it is included in the contract or not. The act of negligence in the part of the surveyor that causes either injuries or financial/economic losses on the part of the third party makes the clients liable to the damages. Also, standard care is needed by the client, for instance, when exercising all the required care and skill. The practice should always be resisted. Specifically, the insurers and the surveyors may need notifications before any agreement is reached. The PI cover may be invalidated when the information is not provided.

Based on the provisions of the damages or liability issues payable under the contract, in an instance a surveyor breaches an agreement, the client will recover is obliged to cover all the damages aimed to remedy the breach. The client has to cover all the losses associated with the violation. Moreover, the losses reasonably get contemplated by both parties at the time a contract agreement gets signed. A good case related to this idea is BBL-v-Eagle Star (1997). In the case, there was an incorrect valuation due to the breach of contract by the surveyor (and negligence). The damages got awarded by the House of Lords representing the difference between the assessment as a foreseeable consequence to the breach. In most cases, the courts take this approach. However, the cost of repairs can get recovered in particular circumstances.

In the case, I recommend that the surveyor should have considered limiting his abilities concerning the third party before entering into the contract. The attempts to limit or exclude liability in respect of the third party should be dependent on the surveyor’s advice (Wilson, 2007). Moreover, a surveyor should act on the utmost good faith. The information they disclose should be accurate to their most abilities. The surveyor ought not to have acted based on the interest of his client. Instead, he should have considered the actual valuation of the houses for the benefit of the borrower and lender. The surveyor assumed the responsibility to protect the claimant from loss due to negligence and bias when providing the valuation report. There is thus a causal link between the breach and the damage caused.

In the BBL-v-Eagle Star case, I recommend that before a surveyor enters into a contract, they need to consider any special circumstance. For example, the surveyors should consider such factors property use and restriction on the liability, such as losses within the contract. For the economic losses, that is, when there is no physical loss involved like in the Smith v. Eric case, it has must be demonstrated that the defendant failed or assumed the responsibility to protect the claimant loss and this case it would get considered under the surveyor’s duties in negligence. The two had acted on the interest of the client and failed to protect the potential economic loss that the borrower would suffer. The error would be a claim of negligence on the part of the surveyor, and the client was liable for the loss. It is crucial that all the parties involved in building construction, whether it is the valuation of the building or survey of the land where the building is getting erected, all the parties should know exactly where they stand and their expectations. An effective agreement and preparation depended on the basis on which the valuation or survey get done will ensure that every party knows their expectations. The practice will reduce the litigation risks and disputes, and this enhances the possibility that the client will be happy with the services provided with no breaches of contract that will result in liabilities.

References

Wilson, S. (2007). Surveys and valuations—Breach of contract and negligence. Journal of Building Appraisal, 2(4), 294-300.