Property Investment Scam – Valuer Pays the Price

The High Court

In an interesting legal development:

a surveyor has been successfully sued for an inaccurate valuation of the rental value of a property. Whilst the case has hit the news because it is the first time that a valuer has been held to account for their report of the rental value of a property, the case also neatly illustrates everything that is rotten about the world of property investment, where the naive are separated from their savings on a regular basis. As is usual in all scams greed is a motivator used by the scammers to encourage normally sensible people to make rash decisions.

The Basic Rules of Scams Apply

• If it seems to good to be true then ….. it is too good to be true.
• If someone assiduously phones, meets, presents to you with energy and drive ….. that’s because they are going to make more money out of what they are selling you than you are
• If they have a guaranteed scheme ….. why are they selling it? Why aren’t they using it?
• Don’t have the scammers pay for the professional advice for you, pay for your own.

If you want to learn about property investing, then everything that there is to know is available free of charge from existing investors on the internet. Definitely avoid anyone selling seminars, services, or mentoring!

Landlord wins buy-to-let case against surveyor

A buy-to-let landlord has won a long-running legal case against a surveyor judged to have overestimated the rental income on a new-build flat, paving the way for future challenges from other aggrieved investors.

Emmett Scullion, a self-employed builder from Portsmouth, bought an apartment in Cobham, Surrey, to augment his pension. The property was valued at its asking price of £352,950 in a valuation by local surveying firm Colleys, now part of Lloyds Bank. The survey said the flat could be let for £2,000 a month.

Scullion bought the apartment in 2002, based on the figures given in the valuation, but found he could let it only at about 50% of the surveyor’s estimate. He sold the property in 2006 at a loss, a full year before the downturn in the housing market.

He subsequently took legal action against Colleys, claiming the surveyor owed him a duty of care, and was awarded £72,000 this month. The damages cover his loss of rental income and the transaction costs of purchasing and then selling the flat.

Reported by The Observer two weekends ago

As a precedent the case is interesting, but the case has other features which are just as interesting, not because they are unique, but because they are stereotypical. The case was heard in the High Court on 6 September 2010. The buyer had signed up with Portfolios of Distinction and been sold a service to build a property portfolio of up to £1 million for a £50,000 annual fee. Money from investors was clubbed together to buy new properties from developers off-plan, before the buildings were complete, enabling them to buy at a discount. I suspect that the sale lead came from Turningpoint Seminars, a firm linked to Portfolios of Distinction, who specialised in seminars on property investment charging £6,000 for courses for prospective investors, teaching them how to acquire buy to let properties without payment of a deposit. At a later date the Department of Trade and Industry alleged that Portfolios of Distinction was carrying out its business in a way that was “inherently objectionable” and closed them and Turningpoint Seminars down.

‘When you invest with Portfolios of Distinction you can be assured that your investment is in safe hands. The company is renowned for its innovation, bringing new property purchasing concepts to the UK and for its established track record in successfully building high worth portfolios for its clients. We are a highly knowledgeable team, who are also property investors ourselves with many years of experience. An expert team that you can rely on to build you a £1m plus property portfolio’.

‘Portfolios of Distinction offer the best managed property scheme in the UK today. We are genuinely different. We build wealth creating property portfolios using our unique and proven ‘no deposit approach’ which can provide outstanding returns’.

What an investor needs to understand when signing up to a packager like Portfolios of Distinction, is that they will be sold a package which will be implemented by a team (Broker, Solicitor, Valuer) whose job is to process these deals for the packager successfully. They do NOT look after the interests of the patsy  investor, they are paid by the packager to achieve a successful deal with the investor patsy.

The patsy signs up for the package on the basis that he doesn’t have to provide any money ever. They buy the property, but don’t need to pay a deposit because the valuer gives the property a valuation of more than it is worth. The bank lends the purchase price happily because credit is cheap and they make good money on the loan which is secure because house prices always rise. The patsy doesn’t need to worry about paying mortgage interest because the rent will cover the mortgage. In fact the pact with the devil does sometimes work for some people.

In this particular case things went wrong because the valuer had to uprate the rental valuation in order for the rental to cover the mortgage, and when the patsy finally realised that he was going to have to make a contribution towards the mortgage interest the solicitor didn’t tell him that he wasn’t obliged to proceed. Because he now wasn’t able to afford the cashflow for the flat he was forced to sell it at a loss.

Distilled down the court judgement means that the valuers have to pay the patsy for the difference between their rent valuation (£2000 pcm), and the rent achieved (£1050 pcm). They also have to pay some of the fees that the patsy incurred, but not all because he didn’t claim them in time. An important part of the judgement is that the valuer isn’t liable for the market loss that the patsy incurred. The argument is illustrated as follows:

A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

The doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct

The part which I suspect that the court has neatly sidestepped is that the patsy should not have made a market loss, during the period that they held the property (2002 – 2006) house prices in general rose 50%. In spite of that the figures for this particular investment are:

Valuation 2002 £353,000

Purchase Price 2002 £300,000

Sale Price 2006 £270,000

Please tell me what is going on!

I final thought for anyone considering litigation, this case very neatly illustrates that the only winners in court cases are lawyers. The Plaintiff won £72,000 damages plus his costs – his costs are actually £187,000 but he will only get costs taxed at the standard rate from the Defendant. He’s definitely got £100,000 already but I suspect that most of his damages will end up paying his legal bill.  He would have been financially better off not bringing the case!

But sometimes it not what it costs that counts, it’s the principle isn’t it?