Avoiding the perils of property refurbishment – a legal opinion

11 March 2019

The prime property market may be slowing in terms of new transactions, but appetite for refurbishments and extensions remains high as an alternative to moving and to add value to a property.

For anyone contemplating a major building project, it might be wise to learn the lessons from two recent headline-grabbing cases where disputes arose with the architects involved.

In the first case, former banker Philip Freeborn and his wife ended up having to sue their architect after a pool house conversion went horribly wrong.

They had instructed award winning architect Dan Marcal to build a cinema room suspended above the indoor swimming pool of their £7 million Barnet based home, amongst other things.

The original design was intended to create a sleek modernist cube ‘floating’ above the pool but during the course of the project two extra steel columns had to be fitted, which were not in the plans and which altered the look that the couple were expecting considerably.

A key dispute between the parties in the litigation was whether or not Marcal had redesigned the cinema box room without telling the Claimants.

In his judgment published at the end of February, the Judge (Martin Bowdery QC) found in the Claimants’ favour. He was heavily critical of the failure by the architect to provide a written agreement setting out the terms of the contract and/or any variations, and commented that it was bad practice for the initial brief not be in writing and for any design development or changes not be recorded in writing.

He dismissed arguments from the defendant that private notebooks were sufficient evidence of the changes discussed with the Claimants and found that the failure to produce a written brief ‘was a serious breach of duty’.

Ordinarily, damages in a construction case such as this would be awarded to cover rectification costs but the Judge said ‘I do not consider that this particular ugly duckling can be turned into a swan’. The claimants were awarded substantial damages (over £500,000) to cover the demolition of the cinema room and compensation for their distress.

The second case involved celebrity designer Natasha Surguladze and her father Michael who bought adjoining mews houses in Chelsea with the intention of merging them into a single, double fronted ‘dream’ home.

They appointed respected architects Donald Insall Associates to design the new house and secure planning approval. However, they later decided to change firm and withhold £40,000 in fees when the original design submitted was rejected by Chelsea Council.

The Surguladzes were subsequently sued by Donald Insall but Judge David Saunders ruled that the the family were right to refuse to pay the architects’ bill, as the work had ‘not met the required standard’ and citing ‘a consequential lack of care and skill’ on the part of the architect firm.

Many of us embark on sizeable refurbishment projects from basements to second kitchens to home offices to underground carparks putting a great deal of trust in the professionals appointed.

The first case here is a timely reminder of the importance of setting out clear terms of engagement in writing, including the scope of work and any subsequent variations when engaging the services of a professional designer or architect.

The second case likewise shows the professional duty of experts appointed and the risk of litigation should the work not be carried out in accordance with clients’ expectations.

Both of these cases will no doubt pave the way for copycat claims from HNWs who become dissatisfied with any property projects they undertake.

This article first appeared in Spear's Magazine on 8 March 2019. To view the article published in Spear's Magazine, click here or the button below.

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