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.
hanghaus2023 schrieb:
Then tell us how large the extension was planned to be. That way, the construction costs could be estimated.Exactly – for a factual assessment, the original poster should show her cousin’s plans here.My legal assessment – strictly my opinion, not legal advice, as I am a businessman and not a lawyer – is this:
There is, I would say, a "more than" huge difference between expressing a suspicion of fraud as an alleged victim and doing so as a defendant and counterclaimant regarding a supposedly owed fee.
The original poster approached an architect and received a draft contract from him, which she wanted to have reviewed. When she returned to this architect without raising any objections to the contract draft, he could assume a tacit acceptance based on the undisputed contract draft. Architect contracts routinely include a power of attorney clause because surveyors, structural engineers, and similar professionals are usually subcontracted.
If, after prolonged silence—probably even in response to a payment reminder—a lawsuit is initiated, the first step is the service of a statement of claim. At this point, the lawyer typically asks the same question as the judge: "Do you plead not guilty?" and then examines what evidence can support the counterclaims.
Even without being a specialist in construction or architectural law, the lawyer must be able to recognize that an excessive claim is being made here, but also that their client has consistently acted imprudently. For such cases, every “when I grow up, I want to be a lawyer” manual recommends proposing a settlement to the client and at least challenging the amount of the claim. Even a very junior trainee lawyer should have immediately explained to the client why her strategy—“the surveyor was probably never on site” (if that was even necessary)—should have been included in a missed fraud allegation but does not hold up as a defense in the fee claim.
What remains is the discrepancy—noticeable even to an ordinary "commercial district judge"—between the amount of the claimed fee and the service that is supposed to justify it. The claim’s basis should have been explained already in the payment reminder, or at the very latest in the statement of claim. This is where the lawyer can intervene because the architect could not possibly have proceeded beyond performance phase 4, so the "extension" would have to be made of Murano glass if his planning had generated a fee claim of $18,000 (18k) by that stage.
The district judge (actually, since $18,000 is involved, it’s a judge at the regional court in the first instance) will recognize from the file that he will have to act as a judge again because the parties did not resolve the dispute beforehand. Typically, a summons is then issued initially for a "conciliation hearing, followed by the commencement of the main proceedings in case of failure." At this point, the lawyer should have explained to the client that this is a warning shot with the message, “If you don’t want this to get expensive, it is better to present a settlement offer before or at the start of the hearing.” The lawyer, keeping the Act on Lawyers’ Remuneration and Court and Notary Fees in mind, usually proposes something like $5,000 (5k), which every sensible opposing counsel would recommend accepting. Using this anchor offer, the judge will likely bring both parties’ lawyers to the table in case of any demand exceeding $7,000 (7k) to close the case economically. The judiciary, after all, has better things to do than to referee childish quarrels. Courtroom time is a scarce resource.
If the original poster now wants to maximize her misfortune and make the worst possible mistake, she will descend into a "bad lawyer self-pity," silently withdraw the lawyer’s mandate, skip the hearing, and receive a default judgment with full pomp, circumstance, and all the flair.
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Silvia T.27 Sep 2024 00:43Thank you all for your opinions. Although most of them don’t meet my hopes or answer my questions, they are still interesting and might give me a saving idea.
First of all, thanks to Schorsch_baut. Exactly, these are the kind of answers I was looking for 😉 I need to find a mistake or way to prove that the surveyor acted improperly in their approach or work... And that’s the point: these people should not have surveyed my property without notifying me! And they did not inform me. On top of that, their invoice states they spent 3 hours on-site 😉 Furthermore, I only received the bare invoice, no data or documentation of the survey. I spoke briefly today with a retired publicly appointed surveyor: he told me that normally the builder or property owner must be notified when the surveyor enters the property, and neighbors must also be informed if the surveyor needs to access neighboring land for measurements. None of that happened.
The architect hired the surveyor on 9 February 2022, received the quote on 10 February 2022, and the survey was done on 11 February 2022. To be honest: I have a well-known tradesperson, for whom I am a VIP client, and I have to wait at least 3 to 4 months before they can start work, while the surveyor completed everything immediately? It smells fishy!
A hearing has already taken place, where the architect was questioned as a witness. The judge asked him if he had clearly informed me that he was going to hire the surveyor. He answered that he didn’t communicate that clearly 😉 (In fact, he didn’t tell me at all.) He lied continuously: I visited him several times (I can prove with my calendar entries that I was there about three times for roughly 0.5 hours each!). Then the surveying office submitted proof of their contract workers and other documents. I was not present; my lawyer represented me. I responded that on that day I was at the house (it was about an extension), I live there, and all the windows of my apartment face the measurement side. I claim the surveyor was not even there.
Now the judge wants to see and question me on 7 November. The surveyor, however, does not want this; they now want to prevent me from speaking and wrote to the judge that it is unnecessary... and so on. I feel they are afraid their lie will be exposed. That’s why I now need “ammunition” in the form of procedural errors that the surveyor made, such as the fact that they were supposed to notify me! Even if I did not personally commission them, as the property owner I should have been informed. If only as standard practice! I certainly would have objected, and this whole situation would never have happened.
The glass is always half full, never half empty.
Furthermore, I am really surprised how flawed a legal system can be that allows a contract to be formed without explicit agreement from both parties?! I am a trained industrial clerk, and in my training I learned that a contract requires the mutual consent of both parties. On the same day the architect sent me the contract, I emailed him to say I needed to have the contract reviewed by my legal insurance! That was on 11 February 2022. It is logical that this is a process that cannot be completed overnight. How can a contract be formed without my signature? I am a landlord, but not a business person. So how is it possible for the contract to be valid?
I feel that if the surveyor loses in court, the architect will back down. The colleagues cover for each other and want to take advantage of a single woman. From the beginning, they assumed I would be easy to pressure.
First of all, thanks to Schorsch_baut. Exactly, these are the kind of answers I was looking for 😉 I need to find a mistake or way to prove that the surveyor acted improperly in their approach or work... And that’s the point: these people should not have surveyed my property without notifying me! And they did not inform me. On top of that, their invoice states they spent 3 hours on-site 😉 Furthermore, I only received the bare invoice, no data or documentation of the survey. I spoke briefly today with a retired publicly appointed surveyor: he told me that normally the builder or property owner must be notified when the surveyor enters the property, and neighbors must also be informed if the surveyor needs to access neighboring land for measurements. None of that happened.
The architect hired the surveyor on 9 February 2022, received the quote on 10 February 2022, and the survey was done on 11 February 2022. To be honest: I have a well-known tradesperson, for whom I am a VIP client, and I have to wait at least 3 to 4 months before they can start work, while the surveyor completed everything immediately? It smells fishy!
A hearing has already taken place, where the architect was questioned as a witness. The judge asked him if he had clearly informed me that he was going to hire the surveyor. He answered that he didn’t communicate that clearly 😉 (In fact, he didn’t tell me at all.) He lied continuously: I visited him several times (I can prove with my calendar entries that I was there about three times for roughly 0.5 hours each!). Then the surveying office submitted proof of their contract workers and other documents. I was not present; my lawyer represented me. I responded that on that day I was at the house (it was about an extension), I live there, and all the windows of my apartment face the measurement side. I claim the surveyor was not even there.
Now the judge wants to see and question me on 7 November. The surveyor, however, does not want this; they now want to prevent me from speaking and wrote to the judge that it is unnecessary... and so on. I feel they are afraid their lie will be exposed. That’s why I now need “ammunition” in the form of procedural errors that the surveyor made, such as the fact that they were supposed to notify me! Even if I did not personally commission them, as the property owner I should have been informed. If only as standard practice! I certainly would have objected, and this whole situation would never have happened.
The glass is always half full, never half empty.
Furthermore, I am really surprised how flawed a legal system can be that allows a contract to be formed without explicit agreement from both parties?! I am a trained industrial clerk, and in my training I learned that a contract requires the mutual consent of both parties. On the same day the architect sent me the contract, I emailed him to say I needed to have the contract reviewed by my legal insurance! That was on 11 February 2022. It is logical that this is a process that cannot be completed overnight. How can a contract be formed without my signature? I am a landlord, but not a business person. So how is it possible for the contract to be valid?
I feel that if the surveyor loses in court, the architect will back down. The colleagues cover for each other and want to take advantage of a single woman. From the beginning, they assumed I would be easy to pressure.
S
Silvia T.27 Sep 2024 01:04@nordanney
Congratulations on your success 😉
I had already tried to reach an agreement with the architect before going to court!
At first, I thought he had made a mistake on the invoice, but when he sent me a reminder, I went to him and asked if he would agree to settle for €5,000 (about $5,500) under the circumstances, since the extension didn’t come about.
That was before I found out that, according to the development plan, the extension could not have been approved anyway...
By the way, that was during the fourth visit to his office. He threatened me and said that if I didn’t pay him the money, my house would be auctioned off, and then he would get his money!
As you can see, nordanney, I didn’t have many options 😉
P.S. It’s no use crying over spilled milk. Yes, I made mistakes, but arguing about them won’t get me anywhere! Look forward, not backward!
Congratulations on your success 😉
I had already tried to reach an agreement with the architect before going to court!
At first, I thought he had made a mistake on the invoice, but when he sent me a reminder, I went to him and asked if he would agree to settle for €5,000 (about $5,500) under the circumstances, since the extension didn’t come about.
That was before I found out that, according to the development plan, the extension could not have been approved anyway...
By the way, that was during the fourth visit to his office. He threatened me and said that if I didn’t pay him the money, my house would be auctioned off, and then he would get his money!
As you can see, nordanney, I didn’t have many options 😉
P.S. It’s no use crying over spilled milk. Yes, I made mistakes, but arguing about them won’t get me anywhere! Look forward, not backward!
S
Silvia T.27 Sep 2024 01:18@Schorsch_baut
That's exactly what I want: to get out of the situation without losing anything!
1.) I believe the court will see it the same way: a local architect should be familiar with the local zoning plan / building regulations! And they should have noticed my cousin’s mistake: but they didn’t because they didn’t deal with it at all!
2.) How can you hire a surveyor when it is not even clear whether the city would approve the extension!
That's exactly what I want: to get out of the situation without losing anything!
1.) I believe the court will see it the same way: a local architect should be familiar with the local zoning plan / building regulations! And they should have noticed my cousin’s mistake: but they didn’t because they didn’t deal with it at all!
2.) How can you hire a surveyor when it is not even clear whether the city would approve the extension!
S
Silvia T.27 Sep 2024 01:33@Hangman-II
My lawyer specializes in architectural law.
Oral agreements can only be made between merchants! I am a private individual. That is why I had no idea about contracts! The special rights of architects with their license to print money!
I agree with you on this: the architect should have checked everything and informed me about everything. The invoice is also unjustified. That is why I believe this is an attempt to scam me!
But my lawyer says these matters do not belong in the surveyor’s procedure!
Thank you, and all the best to you as well!
My lawyer specializes in architectural law.
Oral agreements can only be made between merchants! I am a private individual. That is why I had no idea about contracts! The special rights of architects with their license to print money!
I agree with you on this: the architect should have checked everything and informed me about everything. The invoice is also unjustified. That is why I believe this is an attempt to scam me!
But my lawyer says these matters do not belong in the surveyor’s procedure!
Thank you, and all the best to you as well!
S
Silvia T.27 Sep 2024 01:35@hanghaus 2024:
The construction costs were 750,000€
The construction costs were 750,000€
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