ᐅ Architect commissions a surveyor without the homeowner’s consent.
Created on: 25 Sep 2024 16:23
S
Silvia T.
Hello, can someone tell me if a surveyor is supposed to notify me regarding a planned survey of my house for a proposed extension?
Background:
I wanted to build a larger extension onto my existing house to increase its size. The plans were created by my cousin, who is an architect. However, he was based in Mecklenburg-Western Pomerania, and I live in North Rhine-Westphalia (NRW). Both the financing and the planning were still uncertain when the bank informed me that I would need a local architect to carry out the construction project.
At the end of 2021, I contacted a local architect to ask if he would be willing to take over my cousin’s plans and, if the bank approved the financing, to submit the building permit / planning permission application and manage the construction under those conditions.
Between October 2021 and February 2022, I visited his office about three times, each meeting lasting around 30 minutes. He was not opposed to the idea but said he needed to review my cousin’s plans to see if he could adopt them. During the second meeting, he mentioned he still had the original plans of the existing house since his father had designed it and that he could simply retrieve them from his archives for reference.
The topic of the third meeting was the architectural contract, including which trades would be involved, etc. My clear request was that if financing was approved, no contracts should be awarded without my consent, and that I wanted my legal protection insurance to review the architect’s contract first.
At the same time, I received an offer from a local surveying company that the architect collaborates with, regarding a survey of the house. I ignored this as it was just an offer and I assumed it was non-binding.
About two weeks after this meeting, the bank declined to finance the project, which I immediately informed the architect about by phone, stating that under these circumstances I would have to forego his services and that the construction project was therefore cancelled.
Shortly thereafter, I received an invoice from the architect for €18,000 (around 20,000 USD)! I thought this must be a misunderstanding and did not respond.
Soon after, I also received an invoice from the surveying company for a supposed survey that was allegedly conducted on February 11, 2022. I live in the house and my windows face the area where the survey should have taken place, but nobody showed up.
Summary:
An architect, with whom I only had preliminary discussions (no contract in place) about a planned extension (without bank approval and based on another architect’s plans), commissioned a surveying company without my consent (order and offer dates: February 9/10, 2022; execution date: February 11, 2022).
My question is:
How can I prove that the surveyor was not there and that the surveyor and architect are trying to scam me out of a lot of money? Both invoices are in court, and I need to find a way to show that I had no knowledge the surveyor had been hired. In my opinion, the surveying company should have notified me before carrying out the survey, which did not happen.
Is there any other way to expose their attempted fraud?
I would be very grateful for any suggestions!
P.S. The most frustrating part is that local building regulations wouldn’t have allowed the planned extension anyway. A special application would have been required, and there was no guarantee it would have been approved. Unfortunately, I only found this out later.
Background:
I wanted to build a larger extension onto my existing house to increase its size. The plans were created by my cousin, who is an architect. However, he was based in Mecklenburg-Western Pomerania, and I live in North Rhine-Westphalia (NRW). Both the financing and the planning were still uncertain when the bank informed me that I would need a local architect to carry out the construction project.
At the end of 2021, I contacted a local architect to ask if he would be willing to take over my cousin’s plans and, if the bank approved the financing, to submit the building permit / planning permission application and manage the construction under those conditions.
Between October 2021 and February 2022, I visited his office about three times, each meeting lasting around 30 minutes. He was not opposed to the idea but said he needed to review my cousin’s plans to see if he could adopt them. During the second meeting, he mentioned he still had the original plans of the existing house since his father had designed it and that he could simply retrieve them from his archives for reference.
The topic of the third meeting was the architectural contract, including which trades would be involved, etc. My clear request was that if financing was approved, no contracts should be awarded without my consent, and that I wanted my legal protection insurance to review the architect’s contract first.
At the same time, I received an offer from a local surveying company that the architect collaborates with, regarding a survey of the house. I ignored this as it was just an offer and I assumed it was non-binding.
About two weeks after this meeting, the bank declined to finance the project, which I immediately informed the architect about by phone, stating that under these circumstances I would have to forego his services and that the construction project was therefore cancelled.
Shortly thereafter, I received an invoice from the architect for €18,000 (around 20,000 USD)! I thought this must be a misunderstanding and did not respond.
Soon after, I also received an invoice from the surveying company for a supposed survey that was allegedly conducted on February 11, 2022. I live in the house and my windows face the area where the survey should have taken place, but nobody showed up.
Summary:
An architect, with whom I only had preliminary discussions (no contract in place) about a planned extension (without bank approval and based on another architect’s plans), commissioned a surveying company without my consent (order and offer dates: February 9/10, 2022; execution date: February 11, 2022).
My question is:
How can I prove that the surveyor was not there and that the surveyor and architect are trying to scam me out of a lot of money? Both invoices are in court, and I need to find a way to show that I had no knowledge the surveyor had been hired. In my opinion, the surveying company should have notified me before carrying out the survey, which did not happen.
Is there any other way to expose their attempted fraud?
I would be very grateful for any suggestions!
P.S. The most frustrating part is that local building regulations wouldn’t have allowed the planned extension anyway. A special application would have been required, and there was no guarantee it would have been approved. Unfortunately, I only found this out later.
C
chand198626 Sep 2024 08:56Silvia T. schrieb:
An architectural contract was presented to me, but I did not sign it. However, the lawyer claims that I still have to pay the architect. And how does the lawyer justify that?
Their explanation would help us understand better. Because there is definitely information missing here.
Silvia T. schrieb:
P.S. You don’t switch horses in midstream! And if a lawyer turns out to be a showman, then I have to feed him! Wrong.
What is the purpose of a calendar quote here?
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Schorsch_baut26 Sep 2024 09:18You can’t avoid paying the architect entirely since you used a service—the review and creation of the plans for securing the financing, right? And this service was provided by the architect. The point of dispute is probably the amount, which the lawyer is likely addressing with his settlement.
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hanghaus202326 Sep 2024 10:00I can see your opinion is quite fixed. You probably don’t even read the well-argued posts.
Has there already been an initial hearing?
I agree with @11ant. The lawyer should aim for a settlement. The architect and the surveyor also don’t have strong arguments, at least regarding the amount claimed.
If you want to fight this out because you firmly believe you are being taken advantage of, it will get expensive.
I’m quoting here from the internet:
2.1.1 Silence in response to an offer for agency services
If he does not want to commit contractually, he must object to the proposal. Silence in response to the proposal is considered acceptance according to § 362 (1) of the Building Code; the contract relationship is thus established.
Your lawyer probably knows this. They likely also have all the relevant documents.
Has there already been an initial hearing?
I agree with @11ant. The lawyer should aim for a settlement. The architect and the surveyor also don’t have strong arguments, at least regarding the amount claimed.
If you want to fight this out because you firmly believe you are being taken advantage of, it will get expensive.
I’m quoting here from the internet:
2.1.1 Silence in response to an offer for agency services
If he does not want to commit contractually, he must object to the proposal. Silence in response to the proposal is considered acceptance according to § 362 (1) of the Building Code; the contract relationship is thus established.
Your lawyer probably knows this. They likely also have all the relevant documents.
hanghaus2023 schrieb:
2.1.1 Silence in Response to an Offer for Business Management
If he does not want to be contractually bound, he must reject the offer. According to Section 362 paragraph 1 of the Building Code, silence on the offer is deemed acceptance; the contractual relationship is established. One should verify their sources, especially on the internet. Business management is covered under Section 362 of the Commercial Code (HGB). That applies to merchants. Is the original poster a merchant?
I believe the situation was presented to us in a very simplified way, so we can only speculate here or make assumptions under limited circumstances.
However, I would also recommend changing lawyers. Especially since the saying about the horse is actually nonsense, because a good fighter would, of course, change his horse during battle if it became lame.
H
Hangman-II26 Sep 2024 13:18It’s a bit confusing... I’ll try to organize it:
1. Contractual Relationship
In Germany, a contract does not necessarily require a signature! Contracts can also be made verbally or through "implied conduct." Whether justified or not, the architect will probably rely on this—and will likely be successful! If I were you, I would assume that a contract has been established.
2. HOAI
HOAI is a phased model where the construction project is progressively refined from phase to phase. The purpose of the phases is mainly to identify potential obstacles early on (i.e., in the initial phases). The impossibility of even being able to build should have been recognized and pointed out by a qualified and locally knowledgeable architect in an early phase. From my layperson’s perspective, billing should therefore only be possible up to this phase at most.
If a verbal contract exists, the standard HOAI applies—without any increases or extras. In this sense, the invoice should be itemized, which can be easily checked. This examination must especially include up to which phase has been billed and based on what construction volume. I find it hard to imagine 18,000 euros for Phase I and possibly parts of Phase II for an extension.
3. Partial Services
Assuming a contractual relationship exists (see point 1) and HOAI applies (see point 2), the "partial service tables according to Siemon" help determine the correct fee—since it is quite obvious that significant parts have not been delivered!
4. Surveyor
I cannot assess whether the architect/surveyor mentioned in points 1 and 2 had a justified need for a survey. It seems clear that even without a survey, it should have been evident that an extension was not likely to be approved.
5. Lawyer
There are specialist lawyers for architectural law who can resolve such cases very quickly. Regular lawyers are usually overwhelmed by this.
Good luck!
1. Contractual Relationship
In Germany, a contract does not necessarily require a signature! Contracts can also be made verbally or through "implied conduct." Whether justified or not, the architect will probably rely on this—and will likely be successful! If I were you, I would assume that a contract has been established.
2. HOAI
HOAI is a phased model where the construction project is progressively refined from phase to phase. The purpose of the phases is mainly to identify potential obstacles early on (i.e., in the initial phases). The impossibility of even being able to build should have been recognized and pointed out by a qualified and locally knowledgeable architect in an early phase. From my layperson’s perspective, billing should therefore only be possible up to this phase at most.
If a verbal contract exists, the standard HOAI applies—without any increases or extras. In this sense, the invoice should be itemized, which can be easily checked. This examination must especially include up to which phase has been billed and based on what construction volume. I find it hard to imagine 18,000 euros for Phase I and possibly parts of Phase II for an extension.
3. Partial Services
Assuming a contractual relationship exists (see point 1) and HOAI applies (see point 2), the "partial service tables according to Siemon" help determine the correct fee—since it is quite obvious that significant parts have not been delivered!
4. Surveyor
I cannot assess whether the architect/surveyor mentioned in points 1 and 2 had a justified need for a survey. It seems clear that even without a survey, it should have been evident that an extension was not likely to be approved.
5. Lawyer
There are specialist lawyers for architectural law who can resolve such cases very quickly. Regular lawyers are usually overwhelmed by this.
Good luck!
H
hanghaus202326 Sep 2024 13:37Then tell us how large the extension was planned to be. That way, the construction costs can be estimated.
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