The last two elements are normally quite obvious so we will not concentrate on these in this article.
In the above scenario who is offering and who is accepting?
It should be made clear that you as a surveyor are offering your services at the agreed price with your terms and conditions applying; the client should be the one accepting your offer, preferably in writing.
Your terms and conditions may be attached to an email or included as an attachment to a letter and you may request they are signed and dated by your prospective client and that they return a signed and dated copy to you before you undertake the work – this is preferable. Or you decide to refer to your terms and conditions applying to all your work and direct them to an attachment to an email or an inclusion in a letter. Another alternative is to state your terms and conditions apply to any work you undertake and refer them to a copy on your website by providing the URL; you may do the latter and still ask them to confirm they agree to your terms and conditions. There are different options available to incorporate terms and conditions in a binding agreement.
A final catch all is to state that even if they do not confirm they agree to/sign your terms
So, three simple things to remember: • Know who is instructing you
• Identify your client by confirming in writing to your client your instructions, your offer and supply them with your terms and conditions at this point
• Ensure your terms and conditions are accepted by your client
“put everything in writing”
and conditions, they agree to your terms and conditions by accepting your offer of services. Whatever you do, you must make sure your terms and conditions apply to your contract (your binding agreement) with your client.
If you agree with the sales broker to do the survey what is his status? Is he an agent of the potential purchaser? Has he become your client? Payment for a service is just one element that is looked at by courts when deciding who are the parties to a contract. You may have formed a contract with more than one person by accident. Thus, the rule is, always write to your client before commencing work and ensure they confirm you are working for them only and that they accept your terms and conditions.
It is helpful if you always state in your survey report that the survey is only for the benefit of your client “Mr Bloggs” and there can be no reliance on the document for other parties and neither do you have any liability to anyone else except your client and that the document cannot be released to any other party without your written agreement. You may wish others to be able to rely on the survey report and if so you would need to add that other parties can rely on the survey report but only if you give your written agreement (consent). The decision is yours as to how wide you wish your liability to be to parties.
Matrix Insurance Services Ltd - Provider of professional indemnity scheme for IIMS members
Karen Brain
Managing Director – solicitor non-practising Tel: 01892 724060
enquiries@matrix-ins.co.uk
TThe R eporhe Reportt • • S Sept ember 2020 • Issue 93 | 101 eptember 2020
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