Unhappy with finding of Surveyors Ombudsman: Property (Scotland)

olip74

Hi,

Been looking into the OSP today as I've just spent more than five months going through their resolution process and I'm not a happy camper!

When we bought our house we relied on the home buyers survey (this being Scotland). The surveyor missed a dampness problem in the wall, a category 1 in the survey but, by his own admission, a category 3 three months later when we called him back and clearly a historic issue. The firm offered us £1k straight away for a non-admission of liability but the quotes I've had to resolve the problem are around £5k.

After we were unable to agree a settlement I referred the case to the OSP. The upshot is that the ombudsman agrees that the damp was missed but also agrees with the surveyor that £1k is a fair settlement (still on the basis of a non-admission of liability). I appealed without success. I'm considering going to a small claims court but does anyone have any advice on the following points?

• My first concern is evidence. The OSP is not a statutory body but is funded by RICS, will their findings have any weight in court? i.e. can I point to the fact that they concur that the surveyor missed the damp? I also have quotes from a Certified Remedial Damp-Proofing Surveyor (CRDS) in my support, is this a recognised qualification/accreditation?
  
• The OSP evaluate compensation on "diminution in market value" (DMV) and then split this equally between the complainant and the surveyor, which seems utterly inequitable. How will the courts calculate and apportion costs?

Lastly I have been disgusted by my experience of the OSP who, I feel, are merely a racket who have taken every obtuse angle to defend their profession and discount the evidence I provided. From what I have read online I am not alone. What are the right avenues to complain about this body? My MP? Is there an ombudsman's ombudsman?

mgarl10024

olip74 wrote: »

The firm offered us £1k straight away for a non-admission of liability but the quotes I've had to resolve the problem are around £5k.

I'm in no way qualified to comment on this issue - I just had a thought.

Obviously if the damp problem was missed, this is poor. However, shouldn't the compensation for this be in the form of any costs associated with this - i.e. furniture damaged by the damp etc., cost of calls to sort, refund of original fee, etc.

What you seem to be asking for is the problem to be corrected just because it wasn't spotted?

Unless of course you are arguing that you would have paid £5k less for the property if you had have known and therefore that this £5k is a cost you have incurred?

olip74

mgarl10024 wrote: »

I'm in no way qualified to comment on this issue - I just had a thought.

Obviously if the damp problem was missed, this is poor. However, shouldn't the compensation for this be in the form of any costs associated with this - i.e. furniture damaged by the damp etc., cost of calls to sort, refund of original fee, etc.

What you seem to be asking for is the problem to be corrected just because it wasn't spotted?

Unless of course you are arguing that you would have paid £5k less for the property if you had have known and therefore that this £5k is a cost you have incurred?

That is my point, yes. If the problem had been picked up, it would have been noted in the home report, unless the sellers had had the issue resolved prior to market. If it had been acknowledged in the home report this would have affected negotiations. We would have insisted on a quote to fix the wall and this amount (plus 25% contingency) would have been deducted from the sale price or a 'retention' held by their solicitor in escrow until drawn down upon. This happened when we sold our previous property as there was a statutory notice on it. Our lawyer told us that was the principle that applied so I don't know if the ombudsman is basing its recommendation on the English system or if those rules only apply to statutory notices or if the courts work on this basis de facto? The issue here doesn't really seem to be whether there is liability for the costs incurred, but rather how much the surveyor is liable for.

The advice I had from the CRDS qualified surveyor states:

I Do think you have a strong case because even if as they say there was no readings at time of survey the High Ground level would have to had tanking done and a Guarantee in place which the surveyor should have put on his report asking for copies of Guarantees from a Specialist Contractor.

If none were able to be provided the vendor should have been instructed to provide guarantees which would have made them get the work done or got estimates to carry out the work which would have been deducted from the sale price.

Either the work would have been done or the cost of the works deducted from the sale price.

Either way you would not have been out of pocket or inconvenienced

The matter is confused somewhat because there is a bedroom and bathroom along that wall. The dampness is caused by a high external ground level, as noted above. However the ombudsman has said that because the surveyor couldn't have taken a reading from the bathroom anyway (as it is tiled) they can't be held liable for fixing that section. I'd like to test that in court too as it seems logical that if dampness had been found in one part of the wall any competent surveyor would have to acknowledge that the problem may affect the entire wall and should be investigated. Of course logic seems to have had the luxury of convenience for the ombudsman.

Sarahspangles

The point of Ombudsman Services is that they are a way of resolving problems without going to Court. They have no weight in Court but the Court would view you as having been reasonable in approaching them to try to resolve the problem, before going down the legal route.

There is no point challenging an Ombudsman's findings. They can only give a view based on the available facts. Your problem is damp, you need to concentrate on resolving that.

The thing is, that there is far more risk involved in going to Court. You may not make your case and you may incur costs that you don't recover. Only you can decide if it is worth the risk. The Ombudsman's findings are useful information when you are making that decision. What you think of as obtuse angles may be valid points in Court.

olip74

Hi Sarah, thanks for your advice but I feel like I have little to lose. £1k is not much to risk when I have a bill for £5k and the liability is fairly well established. Cases are often settled before court anyway, the firm may regard the expense of defending the case and risk to their reputation as worth settling. It costs me nothing but a small court fee to lodge my case and I can't be asked to pay the other side's costs.

The OSP is not a statutory body, it is funded by RICS members and, looking online, it seems quite a lot of people are unhappy with them. I'm still interested to know who to complain to about them as their whole approach seems wrong to me and, in my opinion, they are wasting people's time and giving false hope to those who have been let down by the surveying profession. As things stand I'm thinking I should take this to my MP?

olip74

Excerpts from the ombudsman's own customer satisfaction survey, 2011:

The process
When asked about the provisional conclusion report, satisfaction levels were low. The majority were dissatisfied with the logic of its recommendations, accuracy of content, use of evidence and the extent to which they were fair and reasonable. Just over half were satisfied with the readability. Two thirds were dissatisfied with the report’s recommendations, with more than half very dissatisfied.

Final result
Many (around two thirds) felt the report was completely or on balance against them, in line with previous years. This did not change even after further representations were made.
...
most were seeking a financial award (for around three in four this was most important to them) and indeed most received a financial award. This suggests that it was the actual scale of the financial award that they felt was not in their favour, as most received just £100 to £500, although around a third received more than £1,000. Many were complaining about poor information/advice which could potentially have led to a costly purchasing mistake far in excess of a few hundred or thousand pounds

Overall in 2011 the OSP 'resolved' only 61% of the cases referred to it.

olip74

This is finally going to court, about a year after we first raised it with the surveyor. To limit my exposure to the other side's legal fees I've had to take this via the small claims court where the maximum costs that can be awarded are £150. The downside is that I can only claim a maximum of £3,000. The CAB are representing me so they obviously think I have a 'reasonable chance of success' and they have been excellent in providing advice and drafting letters too. I will post the outcome when I have it. I hope the outcome is positive because the surveying profession get away with a lot in my view and it might encourage more people to challenge them. Wish me luck!

chanz4

CAB are, they are not exactly what I call reliable.

olip74

Good news! We received settlement today. I'm still unclear exactly why, but the case was uncontested and we were awarded a decree for the maximum £3k.

We overlooked a lot of advice to settle for £1k and it has been a lengthy and stressful process. To anyone in the same position, or facing similar choices, I hope this provides some comfort that a positive outcome is possible. Every case is different though and, where the courts are concerned, you have to be prepared for anything.

Even after several months I'm still irked by the way the OS:P process worked. In my view there are inbuilt failings that are structured so as to favour surveyors and there is a good case for there to be a statutory ombudsman. Some of these failings were identified years ago in the customer satisfaction surveys commissioned by the OS:P but nothing has apparently been done. I've pretty much had my fill of this whole episode but I am minded to write to my MP about this aspect. It added around five months to the process (a year in total) and, as far as we were concerned, was a waste of our time.