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Why Surveyors Rarely go to the FTT

Saturday, 5th March 2016 | by: Matthew Price

In my day to day role which includes providing potential clients with fee quotations I am often asked as to the likely costs of going to Tribunal. The simple answer to this question is not one the client wants to hear as an appearance can last anywhere between half a day through to two days (although rarely the former) and that is after you have spent perhaps two to three full working days preparing the submission which needs to be clinical, watertight and highly presentable.

The more in-depth answer naturally depends on the characteristics of the property including its capital value, lease length and therefore likely premium. There are also certain groups of typically institutionalised freeholders who regularly frequent Tribunals and aren’t going to change tact any time soon.

Quite simply, a property located in Zone 4 with a reported reasonable premium of £10,000 is not going to create the scenario whereby it is worth each side incurring £2,000-£3,000 each to attend Tribunal. It is also likely that following even a small amount of negotiating the surveyors will only be around this amount apart anyway.

On the vast majority of occasions surveyors advise their client’s solicitor to make an application to simply impose a doomsday deadline which neither side will wish to attend or incur costs on. Solicitors specialising in this type of work will be familiar with the resulting Tribunal directions that set out dates for both themselves and the surveyors to have completed certain tasks. It is a requirement to submit the expert report to Tribunal which is the first high cost item and in the vast majority of occasions it is at this point that both sides thrash out a deal.

There are also occasions whereby the surveyor acting for the other side has either refused to respond to correspondence or has consistently put forward ‘pie in the sky’ arguments that you know they really are only using for political posturing. Patience is required in these situations and it is up to both the surveyor and the solicitor to reassure the client that caving in at this point serves them no advantage and that we must play the long game; apply to Tribunal and hold our nerve to ensure that such tactics offer no advantage.

There are also situations whereby the client is distinctly disadvantaged and a surveyor uses this as leverage. A leaseholder who is selling their property on the basis of acquiring a new lease may fear losing their sale if the extension process drags on for months and months. In this situation the surveyor really should be offering a full explanation of the possibility that they may be held to ransom for a higher premium so ideally the extension process should be started well in advance of marketing the property.

A surveyor’s communication skills should never be underestimated where extension and enfranchisement matters are concerned. Not only does the client’s expectations need to be managed they also need to be able to form a tight team between the client and yourselves as the solicitor. It is a common complaint that the surveyor takes an age in responding to email and calls which is especially important in the run up to a hearing where the statement of agreed facts, the expert reports, the lease and the bundle all need to be co-ordinated. No case should proceed through to Tribunal on account of a lack of communication between the parties.

Of course the more there is at stake the more likely and beneficial an appearance is.  I have in the past encouraged such, owing simply to the fact that I was of the belief that if both sides put forward a solid case the panel would determine a figure that was lower than the one currently on offer from the freeholder. I have also in similar circumstances turned up on the day with all my documents to hand, ready to go, have been greeted by the other side and promptly struck up a deal in the foyer! It just goes to show that the Tribunal can be used for a number of different ends and as long as that is for the benefit of your client that is ultimately all that matters.