Dilapidations miscellany – does a landlord’s surveyor certifying sums due owe a duty of care to a tenant?

Back in the mists of time - when conferences took place in the flesh, and the danger to life on a public bus journey probably only applied to the last bus home from the pub on a Friday night - during a Q&A session at a hotel in Edinburgh an interesting question came up.

If a landlord’s surveyor is “certifying” the sum which is due as the “cost of repairs” in a dilapidations matter (as is stipulated in some leases), does that surveyor owe a duty of care to a tenant?

I promised at the time it was asked that I would send out a short blog on the issue, but secretly I’d hoped to return to the annual conference with an answer. The best laid plans etc. 2020 has done for conferences what the current US president has done to rules-based governance.

So instead, we find ourselves hiding in plain sight behind our screen images and blurred backgrounds. Rather than answer in a virtual conference, I thought I would finally get round to answering in a mini-blog. At least that avoids the risk that you will not be listening, but instead peering over the shoulder of the speaker, trying to work out whether the book in the corner of the lawyer’s curated bookcase really is Fifty Shades of Grey (a title which would arguably be apt for any book on dilaps).

The reason the question needs to be asked at all of course is that the landlord’s surveyor has a contract with…er, the landlord. This comes with a duty of care, and hence a right on the landlord’s part to sue the surveyor (perish the thought) either for breach of contract, in delict, or both. By contrast: there is no contract with the tenant. So is the landlord’s surveyor off the hook? Not necessarily.

The ambit of potential surveyor liability has been clarified as being wider than perhaps was once (thought to be) the case. For example, in a UKSC case reported in 2011 it was made clear that surveyors acting as expert witnesses were not immune from being sued. In the same manner case law has clearly established that a surveyor conducting an expert determination can be sued in negligence.

The ‘certifying’ surveyor for the landlord is in a different position. Nonetheless, if the courts/arbitrators are satisfied that certain criteria are met, they could certainly decide that a tenant can take action for losses caused by the negligence of the landlord’s surveyor. Without going into detail, it might be argued that the surveyor was taking on a role akin to that of the expert determiner under the lease contract, that there was sufficient proximity between the parties, and reliance on their expertise, and as a result that the tenant could sue in delict.

While the matter cannot be certain, having heard rumblings over after-event coffee at the conference where this question came up – about one particular surveyor apparently feeling they had carte blanche to write a tenant’s blank cheque for their landlord client – it seem likely that, if the matter were tested, the clouds could part for a judge or arbitrator in a manner which made it relatively easy for them to conclude that…yes, the tenant ought to be able to sue the landlord’s surveyor for the amount by which they had on any view, gone over the top.

Meantime, on the basis any such court or arbitration hearing - if it happens soon - may require submissions to be made on Webex or Zoom, perhaps best remove grandma’s copy of Fifty Shades from the bookshelf.