Discussion
I am presently being threatened with court proceedings over a professional service provider’s unpaid bill. At the outset of receiving the service provider’s contract, I declined signing and returning the contract, due to me being unwilling to accept the openness of the fees stated in the contract.
My reply on receiving the above contract, was to say that I was prepared to pay fees representing 3% of the total building costs, the same at the time being £100k, with 3% representing a fee to the service provider of £3k.
The reason for me insisting on a fee representing a percentage of the building total costs, were to place some restraint, control on the service provider’s charges, thereby avoiding the service provider being able to find, seek out additional works, leading to an excuse, reason for submitting an inflated, high fee.
The unpaid invoice came shortly after the start of the building works, the amount matching the fee I found unacceptable in the original submitted contract, and a situation that I was very much attempting to avoid.
My defence to any legal action, is that there is no signed contract in place, and that my reply of discord to the fees shown within his contract, should have been addressed prior to undertaking the commencement of any work.
I would welcome any thoughts advice etc., on how best to achieve a satisfactory outcome.
My reply on receiving the above contract, was to say that I was prepared to pay fees representing 3% of the total building costs, the same at the time being £100k, with 3% representing a fee to the service provider of £3k.
The reason for me insisting on a fee representing a percentage of the building total costs, were to place some restraint, control on the service provider’s charges, thereby avoiding the service provider being able to find, seek out additional works, leading to an excuse, reason for submitting an inflated, high fee.
The unpaid invoice came shortly after the start of the building works, the amount matching the fee I found unacceptable in the original submitted contract, and a situation that I was very much attempting to avoid.
My defence to any legal action, is that there is no signed contract in place, and that my reply of discord to the fees shown within his contract, should have been addressed prior to undertaking the commencement of any work.
I would welcome any thoughts advice etc., on how best to achieve a satisfactory outcome.
Was your rejection of their fee proposal in writing? It doesn't have to have been, but it helps from an evidential point of view.
If the situation was exactly as you describe, so that they commenced work without rejecting your counter-proposal, they are in no position to demad the amount they first proposed.
Write back and tell them this.
If the situation was exactly as you describe, so that they commenced work without rejecting your counter-proposal, they are in no position to demad the amount they first proposed.
Write back and tell them this.
IANAL,
If I understand correctly, your case will hinge on what evidence you can provide that the service provider accepted the terms that you counter-proposed when rejecting the contract.
The fact work started means that you and the service provider agreed to something... whether its a signed document or not.
If I understand correctly, your case will hinge on what evidence you can provide that the service provider accepted the terms that you counter-proposed when rejecting the contract.
The fact work started means that you and the service provider agreed to something... whether its a signed document or not.
It's normal for fees to be % based so your request shouldn't come as a surprise although your reasoning is flawed. A fee based on a % gives the consultant a greater incentive to expand the scope of work rather than one based on a fixed fee, the value never comes down!
Did you confirm this change to them before you confirmed that you wanted them to start working for you?
Assuming that this is their first invoice, you need to respond with a clarification of what has been agreed, and with a breakdown for what your agreed stage fee equates to along with a clear confirmation that you are comfortable to pay their fee once corrected.
Did you confirm this change to them before you confirmed that you wanted them to start working for you?
Assuming that this is their first invoice, you need to respond with a clarification of what has been agreed, and with a breakdown for what your agreed stage fee equates to along with a clear confirmation that you are comfortable to pay their fee once corrected.
You will see that I have not been able to provide you with a firm fixed fee, because the extent of time that may be involved is very difficult to gauge at this stage. I have proposed that our fees be time based, and estimated that our costs may amount to between £8-9.5k +VAT. I hope this is acceptable, and no doubt you will let me know.
Acceptance of the terms of this Agreement will occur either by returning to us the sign agreement, or by you allowing us to proceed with the services. The latter being the part i am uncomfortable with.
Following receipt of the above, we had further verbal discussions and I replied by email the following “We consider your reasonable fee, cost of 3 per cent of further building costs, to be acceptable to us.”
From the outset I have attempted to put some control on the professional service provider’s fees, and rather than have charges/fees based on a hourly rate, believed that a fixed percentage of the total building costs, was the appropriate route to take. Although in saying the same, and confirms the point raised by "The Surveyor", building costs have risen from the original sum of £100k to £300k.
Acceptance of the terms of this Agreement will occur either by returning to us the sign agreement, or by you allowing us to proceed with the services. The latter being the part i am uncomfortable with.
Following receipt of the above, we had further verbal discussions and I replied by email the following “We consider your reasonable fee, cost of 3 per cent of further building costs, to be acceptable to us.”
From the outset I have attempted to put some control on the professional service provider’s fees, and rather than have charges/fees based on a hourly rate, believed that a fixed percentage of the total building costs, was the appropriate route to take. Although in saying the same, and confirms the point raised by "The Surveyor", building costs have risen from the original sum of £100k to £300k.
Why do you say fee and cost? That's not clear to me, neither is your reference to further building costs. If your offer is 3% of £300,000 (and the fact that I have to say 'if' shows your problem) then your offer is 9k and their estimate was 8-9.5k so I don't see the problem here.
In contract law your counter offer could negate their original offer, and acceptance can be through action, but your counter offer could fail on uncertainty if it isn't clear enough. Escalation from 100k to 300k indicates a certain lack of certainty in your project. And your reference to further works suggests that some works might already been done or services commenced prior to your email.
In contract law your counter offer could negate their original offer, and acceptance can be through action, but your counter offer could fail on uncertainty if it isn't clear enough. Escalation from 100k to 300k indicates a certain lack of certainty in your project. And your reference to further works suggests that some works might already been done or services commenced prior to your email.
Edited by hutchst on Friday 23 February 02:53
hutchst said:
Why do you say fee and cost? That's not clear to me, neither is your reference to further building costs. If your offer is 3% of £300,000 (and the fact that I have to say 'if' shows your problem) then your offer is 9k and their estimate was 8-9.5k so I don't see the problem here.
This - What's the issue, exactly? Have they now raised an invoice for more than £9k?As others have said, at law, if parties are negotiating then a counter offer from party B wipes out the previous offer that party A had made, and if party A goes on to perform the contract, that is acceptance of the counter offer from B.
But your email was far from clear in terms of what it was and how it should now be construed, I'm afraid. What happened in the discussion prior to your email - as far as you're concerned, was it the case that something was agreed in the conversation (i.e. the contract formed at that point, on their terms save for the renegotiated price) and the email was intended just to confirm that? Or was the conversation non-conclusive and the email is all you have to argue your side of it from?
Wings said:
Following receipt of the above, we had further verbal discussions and I replied by email the following “We consider your reasonable fee, cost of 3 per cent of further building costs, to be acceptable to us.”
I know we dont have copies of all correspondence/ phonecalls etc.... but stating 'cost of 3% of further building costs' could be interpreted as- I now agree with the initial fee, but any additional works- we will only pay you 3% fee for those....quite confused at the language used
Also if the cost of the project has increased to 3 x's the original quote, I'd have been expecting additional fees!
Wings said:
I am presently being threatened with court proceedings over a professional service provider’s unpaid bill. At the outset of receiving the service provider’s contract, I declined signing and returning the contract, due to me being unwilling to accept the openness of the fees stated in the contract.
My reply on receiving the above contract, was to say that I was prepared to pay fees representing 3% of the total building costs, the same at the time being £100k, with 3% representing a fee to the service provider of £3k.
The reason for me insisting on a fee representing a percentage of the building total costs, were to place some restraint, control on the service provider’s charges, thereby avoiding the service provider being able to find, seek out additional works, leading to an excuse, reason for submitting an inflated, high fee.
The unpaid invoice came shortly after the start of the building works, the amount matching the fee I found unacceptable in the original submitted contract, and a situation that I was very much attempting to avoid.
My defence to any legal action, is that there is no signed contract in place, and that my reply of discord to the fees shown within his contract, should have been addressed prior to undertaking the commencement of any work.
I would welcome any thoughts advice etc., on how best to achieve a satisfactory outcome.
Wings - you are normally quite a solid, dead on the money type of poster and up with the various regs that apply to both of us in lettings etc. This sounds quite unlike you old chap. Hope you are not getting too stressed over this.My reply on receiving the above contract, was to say that I was prepared to pay fees representing 3% of the total building costs, the same at the time being £100k, with 3% representing a fee to the service provider of £3k.
The reason for me insisting on a fee representing a percentage of the building total costs, were to place some restraint, control on the service provider’s charges, thereby avoiding the service provider being able to find, seek out additional works, leading to an excuse, reason for submitting an inflated, high fee.
The unpaid invoice came shortly after the start of the building works, the amount matching the fee I found unacceptable in the original submitted contract, and a situation that I was very much attempting to avoid.
My defence to any legal action, is that there is no signed contract in place, and that my reply of discord to the fees shown within his contract, should have been addressed prior to undertaking the commencement of any work.
I would welcome any thoughts advice etc., on how best to achieve a satisfactory outcome.
What the background ie building works, how long ago, when instructed, etc?
employed who? surveyor? do they have a governing body to appeal to?
agreed to 3% of total build costs. Whats the total build cost now? whats the invoice amount total?
The last two years I have found it very quiet with my rental properties, no tenants incoming or outgoing tenants, so no decorating etc. etc. When twelve months ago I came across the opportunity of purchasing a HMO property, approximately 130 miles outside of my usual patch area, I jumped at the opportunity.
Being outside of my usual catchment area, I had no previous history on solicitors, builders, surveyors, architects etc. etc., so all searches for the same were via the internet. Apart from the former, none of the others have set out clearly their contracts terms, services and working schedules.
The architect produced a pretty drawing, that obtained planning approval, but when it came to producing planning approval, we received one excuse after another,, resulting in me cancelling our agreement.
Then I got approached by a local builder, viewed property he was upgrading, I was impressed with his works, so prepared a schedule of refurbishment works to my HMO, and after accepting his quote, both covering estimated costs his time scale to complete the works, engaged the builder.
After the building works had well exceeded both the time scale and estimated costs, I suspended the building works with the builder. Residing so far away, I then decided to engage a local building engineer consultant to both monitor and control future building works. His first course of action was to seek to reengage the builder, when that proved impossible, he made contact with local builders, eventually recommending to me one builder to commence, complete the works.
Remember there is still no building spec in place, and the building consultant has still not carried out a building survey. With the second builder now in place, it was then decided to carry out a building survey, and prepare a work schedule of the works required to complete the project. That subsequent survey then producing major issues with works previously carried out by the first builder.
We strongly believe that the building survey should have been conducted prior to re-approaching the first builder, since had the first builder restarted the works, then there is every possibility that these issues would possibly have never have been discovered.
Due to the lateness of carrying out the above building survey and already having a second builder in place, there is every possibility that I am too late to take legal action against the first builder.
The above lack of Duty of Care by the building consultant, not only influences my reason for refusing to settle his invoice, by strictly imposing my initial agreement fee of 3% of total building costs.
Apart from the local solicitor and the second builder, both who I happen to be extremely confident with, the others have been educated bullsxxxxxs who have talked the good talk, but have lacked basic building knowledge and common sense.
Being outside of my usual catchment area, I had no previous history on solicitors, builders, surveyors, architects etc. etc., so all searches for the same were via the internet. Apart from the former, none of the others have set out clearly their contracts terms, services and working schedules.
The architect produced a pretty drawing, that obtained planning approval, but when it came to producing planning approval, we received one excuse after another,, resulting in me cancelling our agreement.
Then I got approached by a local builder, viewed property he was upgrading, I was impressed with his works, so prepared a schedule of refurbishment works to my HMO, and after accepting his quote, both covering estimated costs his time scale to complete the works, engaged the builder.
After the building works had well exceeded both the time scale and estimated costs, I suspended the building works with the builder. Residing so far away, I then decided to engage a local building engineer consultant to both monitor and control future building works. His first course of action was to seek to reengage the builder, when that proved impossible, he made contact with local builders, eventually recommending to me one builder to commence, complete the works.
Remember there is still no building spec in place, and the building consultant has still not carried out a building survey. With the second builder now in place, it was then decided to carry out a building survey, and prepare a work schedule of the works required to complete the project. That subsequent survey then producing major issues with works previously carried out by the first builder.
We strongly believe that the building survey should have been conducted prior to re-approaching the first builder, since had the first builder restarted the works, then there is every possibility that these issues would possibly have never have been discovered.
Due to the lateness of carrying out the above building survey and already having a second builder in place, there is every possibility that I am too late to take legal action against the first builder.
The above lack of Duty of Care by the building consultant, not only influences my reason for refusing to settle his invoice, by strictly imposing my initial agreement fee of 3% of total building costs.
Apart from the local solicitor and the second builder, both who I happen to be extremely confident with, the others have been educated bullsxxxxxs who have talked the good talk, but have lacked basic building knowledge and common sense.
I think you need to take a deep breath, step back and think very carefully.
You say on the one hand that this chap, we don't know exactly what he is by your references to building engineer? or consultant?, told you at the start that his services would cost you about £9k but you told him you're only prepared to pay £3k and on the other hand you're now complaining that he hasn't done things that you arbitrarily think he should have.
It's bitter pill time. There is no way you should be this far down the line without a detailed scope of work and specification. But you are. You'll need expert help to get out of it.
You say on the one hand that this chap, we don't know exactly what he is by your references to building engineer? or consultant?, told you at the start that his services would cost you about £9k but you told him you're only prepared to pay £3k and on the other hand you're now complaining that he hasn't done things that you arbitrarily think he should have.
It's bitter pill time. There is no way you should be this far down the line without a detailed scope of work and specification. But you are. You'll need expert help to get out of it.
Wings said:
The last two years I have found it very quiet with my rental properties, no tenants incoming or outgoing tenants, so no decorating etc. etc. When twelve months ago I came across the opportunity of purchasing a HMO property, approximately 130 miles outside of my usual patch area, I jumped at the opportunity.
From your posts you have always seemed to me to be level headed. What on earth possessed you to take such a risk?When I first got into the rental business (been out of it for several years now) a very old hand at the game told me stick to my home turf
He gave someone else I knew the same advice which they chose to ignore. It wasn't long before they regretted it.
Hopefully you will be able to resolve your problem without spending too much time and energy on it.
hutchst said:
I think you need to take a deep breath, step back and think very carefully.
You say on the one hand that this chap, we don't know exactly what he is by your references to building engineer? or consultant?, told you at the start that his services would cost you about £9k but you told him you're only prepared to pay £3k and on the other hand you're now complaining that he hasn't done things that you arbitrarily think he should have.
It's bitter pill time. There is no way you should be this far down the line without a detailed scope of work and specification. But you are. You'll need expert help to get out of it.
From reading land mark High Court Judgments, I now believe that with a professional person, there does not need to be a contract in place, or a payment made, for a person to make a claim for wrongful advice or service, the same either under Common Law or Tort.You say on the one hand that this chap, we don't know exactly what he is by your references to building engineer? or consultant?, told you at the start that his services would cost you about £9k but you told him you're only prepared to pay £3k and on the other hand you're now complaining that he hasn't done things that you arbitrarily think he should have.
It's bitter pill time. There is no way you should be this far down the line without a detailed scope of work and specification. But you are. You'll need expert help to get out of it.
I believe the building engineer/consultant has wrongly advised me, the same that will incur me with additional financial costs.
Red Devil said:
From your posts you have always seemed to me to be level headed. What on earth possessed you to take such a risk?
When I first got into the rental business (been out of it for several years now) a very old hand at the game told me stick to my home turf
He gave someone else I knew the same advice which they chose to ignore. It wasn't long before they regretted it.
Hopefully you will be able to resolve your problem without spending too much time and energy on it.
I wish I had also received that same advice, for being outside my home turf is proving the most difficult in making sound judgments.When I first got into the rental business (been out of it for several years now) a very old hand at the game told me stick to my home turf
He gave someone else I knew the same advice which they chose to ignore. It wasn't long before they regretted it.
Hopefully you will be able to resolve your problem without spending too much time and energy on it.
Searching via the internet web sites etc. is not really a good way of locating a qualified surveyor or builder, with the internet allowing a person to appear to be what they are not, able to talk the good talk, but when required not being able to produce the goods.
A polite question: Is English your second language, or have you succumbed to the odd habit that some have of of writing about a legal subject in a sort of fake legalese? I ask because you write in an oddly convoluted manner, and some of what you write is meaningless. I suggest that you take legal advice, because it appears that you have been reading some legal stuff online but not really understanding it. The law of tort is part of the common law, not distinct from it. As for contracts, when a person engages another person to carry out a task, there is a contract, whether or not that contract is contained in a document. A little learning is a dangerous thing, so talk to a lawyer.
Breadvan72 said:
A polite question: Is English your second language, or have you succumbed to the odd habit that some have of of writing about a legal subject in a sort of fake legalese? I ask because you write in an oddly convoluted manner, and some of what you write is meaningless. I suggest that you take legal advice, because it appears that you have been reading some legal stuff online but not really understanding it. The law of tort is part of the common law, not distinct from it. As for contracts, when a person engages another person to carry out a task, there is a contract, whether or not that contract is contained in a document. A little learning is a dangerous thing, so talk to a lawyer.
You are quite right BV with your observations, I am not well schooled, and at times I do find it quite difficult to both digest and understand how certain High Court Judgments are arrived at. I both envy you for your education, and admire you for your achievements, at the same time wishing that 40 years ago, I had spent less time behind the bike shed with the girls, and more time studying. As to your earlier post, I have already engaged the services of a solicitor, the same who I consulted over a contract drawn up by the building consultant, between myself and a builder. Since the contract was not for a fixed price, the solicitor advised me not to sign the contract.
I will need to make a further appointment with the solicitor, but prior to that inevitable meeting, I made referral to the following Court of Appeal Judgment,
http://www.bailii.org/ew/cases/EWCA/Civ/2017/254.h...
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