Should I be complaining to my building surveyor?

[d000hg]

I would expect the surveyor has a gazillion photos so could show me what it looked like at the time, since otherwise it's just my hazy recollection against his word.

An update, I contacted the company who I engaged. Their response is that since the survey was carried out by a 3rd party it is their issue and have forwarded my inquiry on. While it makes sense that the people carrying out the survey are involved, am I right that since my business was with the first company, they are responsible? I engaged them and paid them, then at the last minute they sub-contracted the work to another firm. In my opinion, it is the first company's reputation on the line if shoddy work was carried out in this way?

 

[wessex101]

I would expect that the duty of care lies with the firm that took your written instruction and payment, assuming that it is an RICS firm of surveyors and not one of these online survey agencies that just take the money, process the booking and pass it onto a local surveyor.

If the original firm sub-let the contract to a third party as their in-house surveyor was incapacitated, I would think that is their problem not yours. If they said they could not fulfil the contract and offered a substitution of the third party then I would expect the duty of care passes to the third party. Whose name and details are on the survey?

 

[d000hg]

The survey has the 3rd party's surveyor and company name on it. I'd paid the original firm (an established, old-school RICS brick& mortar company) who sent me this email at the time - emphasis mine:

Unfortunately my surveyor has broken his wrist over the weekend and is therefore off work.

I have spoken to a company called <redacted> who are able to honour the appointment for us. If this is acceptable to you I can arrange for them to issue new terms of engagement to you relating to <address> and issue an invoice to us for the agreed fee.

Re-reading this, does that imply I have actually engaged the 3rd party directly even though they billed the first company rather than myself? Or is their still a responsibility on the first company?

 

[wessex101]

Tricky one, it certainly does look like a substitution. Did the third party issue new terms of engagement? The payment is less important as it appears the original firm simply passed the payment on to the third party with your approval.

I would suggest your complaint will have to be put to the third party. Assuming they are still an RICS firm the complaints procedure I outlined previously will be exactly the same.

 

[^woody^]

Your contract is with the original firm, and this is an indication of their attitude to your complaint.

 

[chappers]

......unless the third party did issue new terms of engagement. Then if they did and the OP let the survey go ahead he has then engaged the 3rd party, under the new terms and his contract is with them, it doesn't matter whether the money was paid by the first surveyors or via a clearing house in Hong Kong.

 

[^woody^]

..... it doesn't matter whether the money was paid by the first surveyors or via a clearing house in Hong Kong.

It does. It's basic contract law - agreement, consideration and the intention to create contractual relations.

The third party will issue an invoice to the original surveying firm, which in turn results in an invoice from the original surving firm to the OP - or the OP may have already paid them. So the OP's contract is with the original surveying firm - as the OP is not paying the 3rd party, so there can not be any contractual relations as there is no consideration. His contract and intention to create contractual relations and the payment is all with the original surveying firm

The 3rd party has a contract (effectively a sub-contract) with the original surveying firm, so the OP claims of the orignal surveying firm, who then claim from the 3rd party firm.

They are just trying to dodge their responsibility

 

[chappers]

But one on it's own doesn't necessarily form a contract... just because the payment has gone via a third party doesn't mean there is a necessarily a contract with that third party, particularly if there is clear sight of an obvious contract with the person carrying out the works.
And in this case the third party taking the payment made it clear that they had no intention of entering into contractual relations, whether the party carrying out the works fulfilled their side is another matter. I think by engaging in the works and the OP allowing them to carry out the works knowing they were not the firm he engaged would be sufficient to bind the contract to them and not the original firm.
Now if the original firm had just subcontracted the works without the OPs knowledge then that would have been a different matter.

If you make a payment for goods through Worldpay, Sage or whoever, your contract is not with them but the firm you are buying the products from.

 

[wessex101]

Assuming the third party did issue new terms of engagement then in the new situation the original firm is just acting as an intermediary/agent to forward the payment. In the same way as when you buy a house the money goes via your solicitor, you don't pay it directly to the vendor. Or maybe a better example is possibly a travel agent, you pay the money through the agent but the contract is with the holiday company.

(Chappers beat me to it) Reminds me of my old college days and contract law...what fun.

 

[^woody^]

Both of you need to go back to college and resit the Contract Law module.

 

[wessex101]

I would be very happy to do that. Our lecturer was a young newly qualified lady barrister who was absolutely gorgeous. She had the most sexy soft southern Irish accent. Happy days.

Mind you it was rather distracting so my knowledge of contract law could be rather hazy.

 

[freddiemercurystwin]

Please bear in mind that woody never gets anything wrong, ever. Even when he is wrong he's actually right.

 

[JohnD]

a young newly qualified lady barrister who was absolutely gorgeous.

she is presumably a very old lady by now.

 

[^woody^]

Oh fmt.

 

[chappers]

I will guarantee you are wrong on this and most specifically in this context. The originally engaged firm most definitively and specifically made it clear they were disengaging from the contract and that the terms of engagement would be with the new firm, should the OP decide to go with them.
They did this for a reason prior to the survey, not after, once the OP complained, and that is because they know the law and how and under what circumstances they could or couldn't be held responsible for what was contained within the report and the steps they needed to go through to distance themselves from that report.
On Saturday I could run it by a lawyer who used to write contracts between governments and oil exploration companies, if you like but I'm sure the original firm has covered their arses on this one. The payment of the money won't be the deciding factor in where the contract was formed on this one.