Surveying - Dilidtins Process in Property - Assignment Example

Surveying - Dilарidаtiоns Рrосеss In Рrореrty Student: Course Name: Instructor: Institution: Department: Date: Today, Dilapidations have become a critical issue of concern for both tenants and landlords of commercial property. As a result, Dilapidations claims are increasingly becoming a niche element and a specialist area within the building surveying profession and legal practice. Indeed, the role of the surveyor is a critical one in this area due to the procedural and legal complexity inherent in dilapidations claims as well as the concurrent finical costs incurred by firms as dilapidations liabilities. Accordingly, building surveyors specializing in dilapidations are often required to provide their clients with informed advice and exhibit authority and experience in preparing and/or negotiating claims for their clients. In addition, surveyors provide a crucial service that relate to property dilapidations, protocol and legislation to ensure that the best possible solution is agreed upon by the parties involved. Consequently, the surveyor has an influential part to play in the dilapidations process. This paper reviews the role of surveyors in this process, with particular reference to the uncertainty and variability of the surveyor’s judgments and decision-making. Who is a Surveyor? A building surveyor is described as a professional individual skilled in the understanding and interpretation of building law. A building surveyor is certified to appraise building plans in order to ensure they comply with the stipulated building regulations (Hoxley 2012). Further, building surveyors provide expert advice on all issues related to existing buildings including building defects, renovations, modifications, and extensions. To this end, surveyors often required to work on-site so as to observe the performance of structures and formulate methods to improve them or rectify defects in their design (Hoxley 2012). Notably, building surveyors are tasked with the responsibility of guaranteeing that building structures are safe, accessible and sustainable in terms of energy use. As such, they have an influence on the planning, design, and functionality of buildings. Surveyors correlate and collaborate with other professionals including architects engineers, local planning bodies and construction workers to make sure that structures are designed and built in accordance with existing building regulations. (Royal Institution of Chartered Surveyors (RICS) 2012) As individuals, surveyors are required to possess expertise in building legislation, construction standards, and technical codes. They should also be able to identify and diagnose faults with design issues, construction methodology and materials; and be able to carry out the building inspection and assessment process from the foundations until completion. They are also required to exercise due diligence in the conduct of their work and give informed decisions that are guided by the professional and ethical systems to which they are bound. Further, they should exhibit excellent people skills, a knack for detail, analytical skills and vast experience in the building industry (Hoxley 2012). In terms of professional qualifications, surveyors require a degree in a building surveying related field such as construction, property or geography. In addition, they must be registered by a professional body like the Royal Institute of Chartered Surveyors (RICS) or Association of Building Engineers (ABE) (Hoxley 2012). Dilapidations Process The term "dilapidations" is used to describe a condition of disrepair in a property where a legal liability for the state of disrepair exists (Rowling 2012). This legal liability normally originates from direct covenants enclosed within a lease agreement but could be a result of the law of implied contract or tort. Consequently, a dilapidations claim is characterized as an allegation of breach of contract or lease agreement, which is actionable, in law. These breaches may occur in various forms, but the most common one include leaking roofs, lack of repair and lack of redecoration (Wood, 2009). Indeed today, numerous commercial leases contain various repairing and redecoration obligations for the tenant which describe the condition in which the landlord expects the property to be maintained during the currency of the lease and when the term ends. In many cases, tenants often consider these clauses insignificant hence the increased dilapidations claims. In such cases, tenants often receive with shock a schedule of dilapidations especially due to the costs involved. A schedule of dilapidations forms the foundation of a dilapidations claim and outlines and details, in a prescribed format, the items of maintenance, repair and redecoration, considered by the Landlord as requiring remedy so as to comply with the terms of a lease (Rowling 2012). Dilapidations are often complex, contentious, costly and unique to the building in question. Accordingly, parties to dilapidations claims are enquired to seek the advice of experts such as surveyors both before entering into lease agreements and when served with a schedule of dilapidations (Rowling 2012). Role of Surveyors in the Dilapidations Process As mentioned before, surveyors play a critical role in the dilapidations process. The main role of the surveyor in this process is to provide his or her clients with informed advice and services relating to dilapidations claims, protocol involved and legislation. According to the Royal Institution of Chartered Surveyors (RCIS), a surveyor may receive instructions in a dilapidations claims case to act as an expert witness and/or as a dispute resolver or an advisory capacity (Royal Institution of Chartered Surveyors (RICS), 2012). The role of an adviser and /or negotiator requires surveyors to use their expertise to detect or comment on any breaches of covenant as well as suggest the appropriate remedies. Surveyors in this capacity are also required to formulate schedules or responses, offer or remark on valuation recommendations, negotiate settlement options with other parties involved in the claim, and give advice on approaches and strategies regarding a claim or a potential claim. Consequently, surveyors in this capacity should have and exhibit the appropriate knowledge and proficiency to carry out the instruction (Royal Institution of Chartered Surveyors (RICS) 2012). The instruction to appear as an expert witness is always personal, and a surveyor may be appointed as an expert witness either for one claim party or as a single joint expert. In this capacity, the surveyor is obligated to provide objective unbiased evidence regarding issues arising from the claim. Accordingly, the evidence offered by the surveyor expert witness should remain constant, whether appearing for the landlord, the tenant, or as a single joint expert. Further, surveyors selected as expert witnesses are obligated to perform this duty in accordance with the RICS Surveyors acting as expert witnesses (2008) and Part 35 of CPR and its ensuing Practice Direction (Royal Institution of Chartered Surveyors (RICS) 2012). Furthermore, a surveyor may be required to act as a dispute resolver through a private agreement among parties involved in the dilapidations dispute or through an appointment by other formal bodies like the RICS Dispute Resolution Service. In this capacity, cases the surveyor should be cognizant of the specific requirements of the role; such as mediator, arbitrator, independent expert, and neutral evaluator, among others (Royal Institution of Chartered Surveyors (RICS) 2012). Notably, surveyors are required to exercise professional objectivity in the various capacities or roles, as well as in the advice they give. Specifically, surveyors are bound by the RICS rules of conduct and the CPR Practice Direction – Pre-Action Conduct (CPR), to ensure that they act reasonably, in their exchange of information pertaining to the claim, detail in writing their respective positions and consider all available alternatives to resolve the dispute. Moreover, they are required to exercise discretion particularly in the capacity of expert witness and ensure that they provide truthful and factual information related to the claim (Royal Institution of Chartered Surveyors (RICS) 2012). Additionally, the surveyor acting in an advisory or negotiator capacity should take caution against exaggeration or understatement of the situation. This is essential since any ensuing litigation bears the risk of heavy penalties against the party who overstates or devalues its position. In essence, surveyors should be cognizant of the complex nature of dilapidations and the various legal considerations involved and hence take precaution against advising or engaging in activities that are not covered by their scope of expertise (Royal Institution of Chartered Surveyors (RICS) 2012). Surveyor Variability in Professional Judgment in Dilapidations Forster & Douglas (2010) define surveyor variability as the circumstances in which two or more surveyors, inspecting a single building and possessing similar evidence for that building’s condition, reach or attain disparate often contradictory survey judgments or decisions. These differences in survey judgments manifest in various ways, including differences among surveyors with regard to in observation, diagnosis, prognosis and treatments prescribed for defects. Further, differences may also manifest in the estimation of the remaining lives of building elements. Notably, the numerous factors that contribute to variability can either be individual or correlated. For instance, if one surveyor may indicate that a particular building element is in a ‘worse’ condition of repair as compared to a different surveyor; it is likely that the surveyor would also accord that element a shorter lifetime (Kempton, Alani, & Chapman 2003). Further, according to Forster & Douglas (2010) surveyor variability may manifest in three other crucial ways. First, variability may manifest in the form of surveyor bias whereby a certain surveyor consistently rates the state of a specific building element either weakly or strictly due to his or her professional background. For instance, hypothetically, an environmental health surveyor may consistently mark particular food-making amenities as inadequate while a different surveyor; say with an architectural training, rates the same facilities as perfectly satisfactory (Forster & Douglas 2010). Second, variability also occurs in the form of surveyor drift whereby a set of surveyors conducting a survey in a particular year are seen, collectively, to be increasing or lowering the overall typical propensity to mark a building element’s condition either weakly or strictly in another year (Douglas, 2010). In this case, ‘Strictly’ means that a surveyor has the propensity to adopt the worst case scenario with regard to identifying building faults and treatments to the identified defects (and subsequently prescribing higher costs of repair). On the other hand, ‘Weakly’ is the reverse i.e. a surveyor exhibit a propensity to consider the best case scenario resulting in correspondingly lower costs of repair. For instance, hypothetically, surveyors conducting a building condition survey in 1999 when the overall property market was prosperous rated the buildings very weakly. This could then be equated to another survey conducted in 2008 when the general market was in a recession where, conceivably, the common attitude among the surveyors was to rate strictly (Rowling, 2012). The third manifestation of surveyor variability is the confirmation bias where a surveyor makes an initial hypothesis of the elements under inspection then proceeds to gather information and evidence to confirm this hypothesis without examining alternative examines. This type of variability also may take the form of a scenario where a surveyor may construe an initial hypothesis and proceed to collect and interpret evidence and data that specifically validates their initial hypothesis (Forster & Douglas, 2010). Surveyor variability is attributed to a number of factors including previous surveyor experience, the surveyor’s attitude to risk, surveyor biases that is an orientation towards a certain opinion irrespective of the existing evidence, and the use of heuristics or the use of ‘‘rules of thumb’’. Other causes may include lack of adequate survey knowledge, survey form design, or merely a surveyor with a ‘‘bad day’’ (Kempton, Alani, & Chapman 2003). In addition, the surveyor variability has a significant impact on the effectiveness, quality and usability of building conditions survey data and can affect the outcome of a dilapidations claim. It is essential to note that, surveyor variability does not infer surveyor errors since the former is simply differences in opinion among surveyors (Gilbert 2009). Surveyor Variability and the Role of the Surveyor in the Dilapidations Process As indicated earlier, the role of the surveyor is to provide expert advice as well as offer other services that are related to the dilapidations claims, involved protocols and legislation. Consequently, variability in surveyor judgments or decisions regarding a particular element under inspection in a dilapidations claim may have significant effects on the resolution of the dispute (Gilbert 2009). Indeed, the hallmark tenet of the role of a surveyor whether as an adviser, negotiator or expert witness is to exercise their duty with professional objectivity. Moreover, surveyors are required to guarantee that their evaluations are neither exaggerated nor underestimated, in any capacity. According to the RCIS Dilapidations Guidance note, acting in contradiction of this may incur heavy litigation burden on the defaulter (Royal Institution of Chartered Surveyors (RICS) 2012). The main implication of surveyor variability on the role of the surveyor in a dilapidations process is in nature and type of variability. Particularly, the issue of concern is determining whether the difference in opinion is as a result of unprofessional conduct by the surveyor or a contextual (difference in professional backgrounds) issue (Forster & Douglas 2010). As mentioned before, variability may occur as a result of previous experience on the part of the surveyor, surveyor attitudes to risk and psychological state of mind. Consequently, variability in dilapidations proceedings mainly questions the professional competency of the involved surveyors which in turn casts doubt on the proceedings of the process. This is critical especially since the surveyors in most cases, are the custodians of the deciding elements in the claims. Accordingly, to distinguish the effect of variability on the role of the surveyor there is a need to establish the definition of professional competency (Kempton, Alani, & Chapman 2003). To this end, reference is made to a small study on professional competency conducted by a team of researchers at Sheffield Hallam and Kingston Universities in 1999-2000 to examine the diverse ‘mental models’ applied by professionals in making their judgments and decisions. Among its findings, this research provided evidence that no distinct, uniform definition of the professional competency exists (Mclean 2011). Specifically, the study showed that different capacities of the surveying profession accord a different importance on various elements depending on their context. For example, in some cases, technical or professional merit is pre-eminent and corporate issues may be of insignificance. While, in other areas, importance is attached to the ability to comprehend the business background in which property or building decisions and verdicts are made. However, the prevailing understanding at the core of professional competence is the cognizance of ethics and a practical ability to handle ethical dilemmas regardless of whether they technical or business oriented (Mclean 2011). Further, the study established a four component descriptor model for professional competence. The model integrates knowledge competence, cognitive or problem solving competence, business competence, and ethical or personal behavioural competence. This model allows those concerned with surveys or assessments to simply compare and evaluate their construal of the balance that is suitable amongst the three foregoing elements while guaranteeing that the ‘core’ ethical competence is entrenched in the three preceding areas. Consequently, these findings of this study help guide the analysis of the effect of surveyor variability on the role of the surveyor involved in a dilapidations claim. Pointedly, by breaking down professional conduct into the four components, it is easier to classify surveyor variability and correspondingly take the appropriate actions as stipulated in the rule of law. For instance, in the event that surveyor variability is linked to the knowledge or critical thinking capacity or the surveyor, then appropriate legal action may be taken with regard to misinformation and or/ dishonest conduct (Property Litigation Association 2008). In essence, surveyor variability has a great impact on the outcomes of the dilapidations process and the litigation process involved. Notably, a difference in opinions between surveyors of the different parties involved in the dilapidations claim may lead to a deadlock in the proceedings, especially if one party suspects professional bias, misconduct or mischief. Further, a difference in opinions increases the cost of the litigation process due to the need to bring in new experts to deciding opinion. Lastly, surveyor variability limits the surveyor in the claim, to exercise their full mandate in the claim since it become problematic to provide honest and truthful advice in such a case (Firn, Stell, & Watson 2010). Conclusion This paper has extensively analysed the critical role of the surveyor in the dilapidations process in property. Indeed dilapidations are complex and extremely technical undertakings within the building surveying profession that often carry huge costs in terms of litigation and repairs or damages compensation. Surveyors occupy a central and crucial role in the resolution of dilapidations claims. According to RCIS, surveyors are often instructed to participate in dilapidations proceedings in three main capacities namely as advisers or negotiators, as dispute resolvers, and as expert witnesses. The main role of surveyors in these capacities is to offer expert advice to their clients, and provide the relevant services required in the dilapidation process, in the protocol involved in the claim and the concomitant legislative duties. Over the years, surveyors have been challenged by the issue of surveyor variability, which significantly compromises, their discharge of duties. Surveyor variably infers to the scenario where different surveyors assessing the same building and confronted by similar evidence, offer divergent verdicts on the condition of the building. Surveyor variability is attributable to individual surveyor characteristics or contextual or equipment faults. The main impact of surveyor variability on the role of the surveyor in a dilapidations claim is that it affects the amicable resolution of the claim and may be costly in terms of legal liability for parties found at fault. Accordingly, surveyors are bound by professional standards and ethical conducts to ensure that they exercise due diligence and objectivity in the advice and actions they undertake during a dilapidations process. Bibliography Douglas, J 2010, ‘Building Surveys and Reports’, John Wiley & Sons: London. Firn, K, Stell, P, & Watson, M 2010, ‘Can Commercial Property Dilapidations Surveyors Ever Be “Economical with the Truth”?’, L. & T. Rev., 14, Issue 5, pp.167-172. Forster, A, & Douglas, J 2010, ‘Condition survey objectivity and philosophy driven masonry repair: An increased probability for project divergence?’ Structural Survey, Vol. 28 Iss: 5, pp.384 - 407. Gilbert, D 2009, ‘Section 18 valuations: Wisdom or witchcraft?’, Journal of Building Appraisal, 4, pp.169-180. Hoxley, M 2012, ‘UK building surveying education: the graduates' view’, Facilities, Vol. 30 Iss: 5/6, pp. 218 - 233. Kempton, J, Alani, A, & Chapman, K 2003, ‘Surveyor variability – application of social judgement theory’, Structural Survey Volume 21, Number 2, pp. 63-69. Mclean, S 2011, ‘Providing vocational skills and academic knowledge to the professional building appraisers of the future’, Journal of Building Appraisal, 6, pp. 285–297. Property Litigation Association, 2008, ‘Pre-Action Protocol For Claims For Damages In Realtion To The Physical State of Commercial Property at The Termination Of A Tenancy (The Dilapidations Protocol)’ 3rd ed., Property Litigation Association: London. Rowling, J 2012, ‘Can Dilapidations be improved?’, Journal of Building Survey, Appraisal & Valuation Volume 1, Number 2, pp. 106-113. Royal Institution of Chartered Surveyors (RICS) 2012, ‘Dilapidations: RICS guidance note, 6th edition (GN 35/2012)’, Royal Institution of Chartered Surveyors (RICS) : Coventry,UK. Wood, B 2009, ‘Building Care’, John Wiley & Sons: London. Read More