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CIR 09/22 | Update on Tender for Property Valuations issued by CFR

Further to Directive DIR 08/2022, the Council met with the Commissioner for Revenue, Mr Joseph Caruana, and the Director of Property Tax, Ms Josette Galdes on 12th August 2022. During this meeting the Council outlined its serious misgivings about the tender, particularly relative to the capping of €25 per valuation report and €25 per Court sitting. The Council also pointed out that there is no mention of remuneration for disbursements, such as acquiring planning permits from the PA, and that such remuneration fees would inevitably affect the quality of the valuations being provided.

 

During the meeting the CFR stated that it understood the nature of the Kamra’s objection, and expressed its openness to introducing differential rates, distinguishing between the valuation of garages and hotel resorts, which would have otherwise all been compensated for at the capped rate of €25.

It was agreed that the CFR would consult with the Department of Contracts (DoC) to establish whether the tender as published could be amended. However, the CFR was not willing to withdraw and republish the tender should this not be possible.

 

On 16th August 2022, the CFR informed the Council that the DoC was unable to amend the tender.

 

Given the above, the Council is notifying members of the profession that the only resolution to the matter is allowing the current tender to run its course without any bids, so it may be republished after appropriate consultation is made with the Kamra in accordance with article 4 of Subsidiary Legislation 390.01.

 

Moreover, the Council shall retain Directive DIR 08/2022 in place. Members of the profession are reminded that disciplinary action will be taken against periti who do not abide by the Directive.

 

Perit André Pizzuto
President

 

 

DIR 08/22 | Tender on Property Valuations issued by CFR

The Council of the Kamra tal-Periti has been notified of a tender issued by the Commissioner for Revenue with reference SPD7/2021/081 named “SERVICES – FRAMEWORK AGREEMENT FOR THE PROVISION OF PROFESSIONAL SERVICES OF PERITI TO PROVIDE VALUATIONS OF PROPERTIES TO THE COMMISSIONER FOR REVENUE (CFR)”.

The tender stipulates that “[v]aluations of properties is capped at a fixed fee of twenty-five Euro (€25.00) excluding VAT”. These are unacceptable terms, which undermine the scope of the due diligence and research necessary for the preparation of a valuation report, as well as underestimate the associated liabilities.

 

In view of the above, the Council is hereby instructing all Periti not to submit bids for this tender.

Failure to abide with this Directive will result in disciplinary action.

 

Perit André Pizzuto
President

 

 

DIR 04/22 | Transfer of Commissions

Explanatory Note

The transfer of commissions, projects and tasks from one perit to another is generally a delicate and potentially complex transition which can give rise to a number of issues related to ethics, commercial interests, and intellectual property rights.

In 2009, the Council of the Kamra had, at the behest of the General Meeting, issued the Change of Perit Directive that sought to govern the transition from an ethical perspective. The focus at the time was not to stifle the possibility for the incoming periti from delivering their professional services and not to unduly harm clients who may be victims of vexatious requests for payments from outgoing periti. As a result, Directive 04/09 had stipulated that outgoing periti must hand over projects to the incoming perit even if there are outstanding payments due.

Over time, however, the original intentions of the 2009 directive were thwarted to the point where periti frequently ended up not getting paid for their services by their clients, who exploit the directive to move projects from one perit to another, sometimes more than once, to avoid paying for professional services.

This directive seeks to strike a fairer balance between the rights of periti to get paid, and the protection of clients from vexatious claims for payment.

It is important to underscore that the rights and obligations outlined below pertain exclusively to the realm of professional and ethical conduct, and do not overrule or substitute civil law. It is thus recommended that in exercising the professional rights enunciated below, periti seek legal advice to ensure they do not expose themselves to civil claims for damages.

Members of the profession are also notified that this Directive was vetted by the Kamra’s legal advisors.

 

Directive

 

The Council of the Kamra tal-Periti hereby gives notice to all members of the profession of this Directive governing the transfer of commissions, or engagements to provide professional services, from one perit (or partnership of periti) to another.

 

This Directive outlines the processes to be followed in such cases, as well as the relative rights and obligations of the periti involved, and matters relating to liability.

 

Directives DIR 04/09, DIR 03/19 and Circular CIR 02/09 are being hereby repealed.

 

 

1. PROCESSES

 

1.1 When a development application is still ongoing

When a commission is terminated during the processing of a planning application, the outgoing perit shall, in addition to the client and the Kamra, also notify the Planning Authority via eApps, requesting immediate suspension of the planning application process in terms of S.L. 552.13 reg 12 (1) to provide sufficient time for:

  • the client to identify another perit;
  • the outgoing and incoming periti (or partnership/s of periti) to satisfy their respective obligations as set out in this Directive;
  • the compilation and submission of any forms that may be prescribed by the Planning Authority.

 

1.2 When works are underway

When a commission is terminated after construction works have commenced, the outgoing perit shall, in addition to the client, also notify the Kamra tal-Periti, the Building & Construction Authority[1], the Planning Authority[2], and the Commissioner of Police[3], as well as the Superintendence of Cultural Heritage[4], where applicable, to ensure that no works proceed without the general supervision of a perit, and the necessary forms as may be prescribed by the Building & Construction Authority, Planning Authority, and any other relevant statutory bodies, are formally filed[5].

 

1.3 In all other cases

In all other cases where the statutory processes described above do not apply, the provisions in Sections 2 and 3 only shall be applicable.

 

 

2. RIGHTS & OBLIGATIONS OF THE OUTGOING PERIT

 

2.1 Right to refuse release

A perit may refuse to release a commission in the following circumstances:

a) if the termination is being initiated by the client in cases where the perit has issued legitimate instructions to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) if the perit has not been remunerated in accordance with the terms set out in a written agreement[6] with the client.

 

Provided that if any of the above circumstances exist, the perit shall immediately notify the Kamra providing details of such circumstances.

Provided further that once the outgoing perit has been remunerated, or a final decision is reached by a Court or other adjudicating body, the outgoing perit shall release the commission to the incoming perit and proceed with the handover in accordance with section 2.3.

Provided further that if no circumstances as described above exist, the perit shall not withhold the release of his commission unless otherwise authorised by the Council of the Kamra tal-Periti.

 

2.2 Obligation to notify

The outgoing perit shall in all circumstances, follow the processes set out in section 1 of this directive, as applicable.

Provided further that if the commission is being terminated by the outgoing perit, s/he shall keep a record of the relative written notification to the client of the termination.

 

2.3 Obligation to provide handover

Upon being notified in writing by the incoming perit that s/he was engaged by the client to take over the commission, the outgoing perit shall provide the incoming perit a full handover within a reasonable amount of time, which handover shall include information about the design, site conditions, site survey, the client brief governing the services s/he had hitherto provided, photographs of the works, instructions and reports about the works, communication with the various authorities until the time the original perit was still entrusted with the commission, and any other relevant information necessary to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes, as may be applicable depending on the nature of the commission.

Provided that such handover excludes the transfer of intellectual property belonging to the original perit, including any digital information such as CAD drawings, 3D models, and other similar data, unless agreed to by the outgoing perit at his/her discretion or as may have agreed in a prior written agreement between the outgoing perit and the client.[7]

Provided further that the outgoing perit may request payment for the transfer of his/her intellectual property, unless otherwise specified in a written agreement between the original perit and the client.

Provided further that the outgoing perit may request additional remuneration and/or termination fees from the client to provide a handover as long as this is already provided for in the written agreement.

 

3. RIGHTS & OBLIGATIONS OF THE INCOMING PERIT

 

3.1 Obligation to notify

Upon being approached by the client to take over the commission from another perit, the incoming perit shall notify in writing the outgoing perit of this requesting the initiation of the handover process.

 

3.2 Obligation to refrain from taking over a commission

A perit shall refrain from accepting to take over a commission originally commenced by another perit in the following circumstances:

 

a) If the original perit is being substituted for issuing legitimate instructions to a contactor to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) If the original perit has not been remunerated in accordance with the terms set out in a written agreement with the client.

Provided that if no such written agreement exists, the incoming perit will not be impeded from taking over the commission as long as other sections of this directive are followed.

 

c) If the incoming perit has not notified the original perit in writing and requested a comprehensive handover from the outgoing perit.

 

For the purposes of this Directive, taking over a commission shall include the submission of Change of Perit Forms, or other equivalent forms, to any authority. Incoming periti are prohibited from filing such forms.

The Council of the Kamra tal-Periti shall consider any actions by a perit to take over the commission of another perit before resolving such disputes as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Provided that an incoming perit shall not be impeded from taking over a commission, if the outgoing perit chooses to waive his/her rights outlined in section 2.1.

 

4. PROFESSIONAL LIABILITY WHEN TRANSFERRING COMMISSIONS

4.1 Under no circumstance shall a transfer of a commission constitute the transfer of liabilities between periti (or partnerships of periti).

4.2 The outgoing perit shall remain liable for the professional services s/he has completed until the date of the transfer becomes effective.

4.3 The incoming perit shall be liable for the professional services s/he provides from the date the transfer becomes effective onwards.

4.4 The handover information should be sufficiently detailed to clearly demarcate the liabilities of both outgoing and incoming periti, and is to include a clear indication of all services rendered and works erected by the effective termination date.

 

Perit André Pizzuto
President

 

[1] Notification to the BCA can be effected via eApps (Avoidance of Damage tab) or via email [email protected]

[2] Notification to the PA can be effected via eApps (Submit Correspondence tab)

[3] Notification to the Commissioner of Police can be effected via email on [email protected]

[4] Notification to the SCH can be effected via email on [email protected]

[5] The PA’s Change of Perit form and the BCA’s Change of Responsibility form are to be submitted by the outgoing perit.

[6] For the purposes of this Directive, a written agreement, which can be in the form of a contract, letter of engagement, or quotation approval (including via email), shall include as a minimum:

  • confirmation that the client has accepted the perit’s offer to provide clearly specified services;
  • the remuneration the perit will receive from the client in exchange for the services agreed upon;
  • the date of such agreement.

[7] Periti are advised to refer to Directives DIR 01/15 and DIR 02/18 for further detail on intellectual property rights held by periti.

 

 

 

Case Study 4 | Change of Use and Related Works on a Property on which another Perit was previously engaged

One of the functions of the Kamra tal-Periti is to investigate complaints of misconduct made against members of the profession. In some cases, it is evident that periti act in bona fide, however in a manner which may give rise to issues of misconduct.

One such case involved a complaint which was received from Perit A in May 2018. Perit A had been engaged to submit an application for sanctioning and alterations to a property including the change of use of a space into a clubhouse. This application was approved and a commencement notice submitted in April 2018.

Perit A subsequently became aware that Perit B had been engaged to submit an application for the change of use of the property to a restaurant, including related alterations, which application had been submitted in February 2018.

Perit A reported that at no time had Perit B notified of such engagement, and also claimed that Perit B had copied certain details (site information and signage) from the first set of permit drawings and reproduced them in the new application drawings.

The Council of the Kamra tal-Periti wrote to Perit B asking for comments on the complaint. Perit B responded stating that the works which were subject of the new application were completely different from those which Perit A was engaged to undertake, that the briefs were different and that the Client had confirmed that the works covered by the first permit would not be undertaken. Furthermore, the fact that the Planning Authority did not require a Change of Perit form was also interpreted by Perit B as an indication that there was no need to inform Perit A. Nevertheless, immediately upon becoming aware of the complaint, Perit B wrote to Perit A apologising for their actions.

Perit B also stated that the elements which Perit A alleged to have been copied from the original permit drawings consisted of site information and signage, and that the new application was not proposing any changes to such aspects. Thus these were indicated on the new application drawings in order to represent the “as existing” situation.

After taking into account all of the submissions by the parties, the Council of the Kamra tal-Periti concluded as follows:

 

  1. VERACITY OF ALLEGATION

It is evident that Perit B did submit an application for a change of use and related minor works on a building on which Perit A had been previously engaged to carry out other works. It is also evident that Perit B used the drawings prepared by Perit A as a basis for the new application.

 

  1. NATURE OF MISCONDUCT

The Code of Professional Conduct (Chapter 390.01 of the Laws of Malta) states that “A member, on being approached or instructed to proceed with professional work upon which another member was previously employed, shall notify the fact to such architect.

In this case, the works which Perit B was approached to undertake were different to those entrusted to Perit A, although they concerned the same building. The Council is of the opinion that this presents a borderline case, in view of the following:

  1. The brief given to Perit B was different to that given to Perit A and therefore it could be considered that Perit B was not “proceeding with work upon which another member was previously employed”;
  2. The Applicants for the two planning applications appear to be different, although possibly representing the same Client Organisation,and therefore it seems that there was also lack of communication at this level;
  3. Notwithstanding the above, the fact that the proposed works in the application submitted by Perit B concerned the same site on which a planning permit had been obtained by Perit A and which was still valid, and for which a commencement notice was subsequently submitted, created uncertainty both in terms of responsibility, as well as with regard to Perit A’s relationship with the Client.

The Council was therefore of the opinion that it would have been far more prudent for Perit B to advise Perit A immediately upon being engaged to proceed with the new application, particularly in view of the fact that the structural works covered by the first permit were potentially overlapping in terms of execution timeframe with the new works to be undertaken Perit B’s direction. The Council is nevertheless assured that the actions of Perit B were not intended to supplant Perit A, who would have proceeded to oversee the implementation of the scope of works entrusted to said Perit A.

The Council also took note of Perit B’s explanation that the site information and signage were replicated from Perit A’s drawings since no changes were being effected to these parts in the new application, and therefore these were taken as the “as built” situation. Nevertheless, this further confirms the Council’s opinion that it would have been prudent for Perit B to communicate directly and immediately with Perit A on this matter.

 

 

DECISION

The Council concluded that the case presents a borderline situation, further exacerbated by Perit B’s failure to communicate with Perit A.  The Council also considered that Perit B had apologised immediately upon being made aware of Perit A’s complaint.

Perit B was formally advised that it would have been prudent to notify Perit A, if anything in order to ensure that Perit A was aware of the Client’s intentions not to proceed with the originally approved works, and was exhorted to exercise more prudence in future similar situations.

 

The Council has issued this Case Study to remind members of the profession that, at all times, it is important to safeguard the interests of fellow professionals. For the avoidance of doubt, it is recommended that, upon being engaged to carry out new works on a site where another perit was previously engaged, periti should communicate with the pevious perit and advise them of their new engagement, even if the works to be undertaken are different from those originally entrusted to the first perit. It is also to be noted that the administrative requirements of the Planning Authority, such as the requirement or otherwise to submit a Change of Perit form, are not to be confused with the overriding principles outlined in the Code of Professional Conduct.

 

Case Study 2 | Conflicting role of Perit and Developer

As you are aware, one of the functions of the Kamra tal-Periti is to investigate complaints of misconduct made against members of the profession. Many of these cases are often cleared following mediation between the parties, however there are several instances where the Council finds the actions of the perit in question to be unacceptable and unbecoming to the profession.

This case study considers a complaint which was received from Complainants A in March 2017, wherein they stated that they had purchased an apartment from Perit X around 20 years ago. When they came to sell the property in 2014, the estate agent brought to their attention the fact that the property was not compliant with the approved permit, including the number of garages beneath the block, some internal alterations, changes to the façade, and a room at the back of the property which had been indicated to them to be a bedroom (and was in fact used by them as such) but which had been approved as a kitchen in view of the depth of back yard which was less than the required minimum of 3m.

Complainants A alleged that they had been deceived when purchasing the property from Perit X, since the latter knew that the property was not in accordance with the approved permit. They stated that since the seller was a Perit, they had assumed that Perit X was acting in a professional manner, and they trusted in the advice given to them at the time of purchase. They also alleged that Perit X had shouted at them in their own residence, and also requested payment to submit the relevant applications to the Malta Environment and Planning Authority (MEPA), and, later, the Planning Authority (PA), to rectify the deviations from the approved permit. They also complained that although these matters had been brought to the attention of Perit X in 2014, the situation had not yet been addressed at the time of their complaint, and thus they had suffered damages as they could not sell their property.

Throughout the course of its investigation into this case, the Council of the Kamra tal-Periti requested various statements in writing from both Perit X and the Complainants. The Council also summoned both parties to testify, in order to be in a better position to determine the facts of the case.

It transpired that the land on which the block of apartments was built was owned by Company Y, of which Perit X was one of two shareholders (the other shareholder was also a Perit). Perit X had submitted the application for development permission to the Planning Area Permits Board (PAPB), in the capacity of both the owner and the responsible Perit. Perit X was then responsible for the design and erection of the block, and had acted on behalf of Company Y when the apartment was sold to the Complainants.

Upon being contacted in 2014 by the Complainants, Perit X proceeded to submit a number of applications to the MEPA / PA in order to rectify the situation with the Complainants’ apartment and the rest of the block. These included a Full Development Application to sanction the garages, and the internal and external alterations, a Minor Amendment application to this permit, two Category B (CTB) Concession applications and two applications for Regularisation. All these applications were eventually approved.

After taking into account all of the submissions and the testimony of the parties the Council of the Kamra tal-Periti concluded as follows:

 

  • CONFLICT OF INTEREST BETWEEN ROLE OF OWNER / DEVELOPER AND PERIT

There is no doubt that conflict of interest existed between the role of Perit X as co-owner of Company Y (the developer), and the role of same as Perit responsible for the design and erection of the block. Perit X admitted to have been fully aware that the permit conditions were not adhered to at the time that the Complainants purchased the property, and yet he had never informed the Complainants of these deviations, thereby abusing their trust. In particular, this situation was further aggravated by the fact that, when purchasing the property, the Complainants felt reassured that they were acquiring a property which was built in line with the original planning permit, in view of the fact that the seller was a Perit by profession.

 

In its decision, the Council wrote to Perit X stating that “By putting yourself in this position, the Council is of the opinion that you have created a situation which goes against the intent of the Code of Professional Conduct which states that “A member must not hold, assume or consciously accept a position in which his interest is in conflict with his professional duty.” It is clear that in this situation you placed your interests as owner / developer of the property before your duty of care as a professional towards society. In view of this, the Council is hereby issuing a formal severe reprimand, which reprimand shall be registered in the Kamra’s records. Furthermore, you are advised that the Council will not tolerate any other similar reports of misconduct against you in the future.

 

  • DELAY IN ADDRESSING THE SITUATION

While it is true that there was a delay in addressing the situation, which was originally brought to the attention of Perit X in 2014, the planning processes available at the time could not address the situation present on site, and the Council was satisfied that the submissions to the MEPA and PA by Perit X were carried out with due diligence. The Council agreed that the delay in achieving full regularisation of the property as built was beyond the direct control of Perit X, although, as outlined above, the deviations from permit conditions should have been disclosed to the Complainants at the time of purchase of the property.

 

  • RAISING OF VOICE

The Council noted that Perit X had admitted under oath to shouting at the Complainants in their residence. Although it is a matter which is not becoming of a professional, the Council was satisfied that this appears to have been a momentary outburst. Nevertheless, the Council requested Perit X to apologise formally to the Complainants.

 

  • REQUESTS FOR PAYMENT

The Complainants claimed that Perit X requested payment in order to rectify the planning situation of the property. The Council is satisfied that although this was the case, Perit X did not insist on this matter, and eventually carried the costs associated with the relevant planning processes. Ultimately, this was a commercial matter between the two parties. The Council agreed that Perit X had not been engaged by the Complainants with respect to the applications submitted to the MEPA / PA to rectify the situation, but rather they approached Perit X as co-owner of Company Y, and therefore if anything any claim of fees due should have been addressed through Company Y.

The decision was copied to the Complainants. The Council also agreed to issue a Memo to its members advising them of the serious conflicts that may arise when they assume dual roles such as in this case.

 

The Council has issued this Case Study to remind members of the profession that, at all times, it is important to act in a manner which upholds ethical standards and professional decency. Periti are reminded that, in accordance with Chapter 390 of the Laws of Malta, conduct which is deemed to be discreditable to the profession may be punishable through the suspension, revocation or cancellation of a warrant.

 

Case Study 1 | Taking Deposits and Not Delivering Services

One of the functions of the Kamra tal-Periti is to investigate complaints of misconduct made against members of the profession. Many of these cases are often cleared following mediation between the parties, however there are several instances where the Council finds the actions of the perit in question to be unacceptable and unbecoming to the profession.

This case study involves a complaint received from Complainant A in November 2016, wherein it was alleged that Complainant A had engaged the services of Perit X to survey their property and provide an estimate of the insurable value. Perit X inspected the property and requested a deposit of €80.00, and assured Complainant A that the report would be completed within three weeks.

Despite several attempts to contact Perit X, and several reminders by email, SMS and phone calls, the Complainant never received any form of report from Perit X. The Complainant therefore wrote to the Council of the Kamra tal-Periti stating that “months have now passed from the agreed delivery date and we are left with no other means of recourse (excluding legal) but to appeal to you on the grounds of professional ethics and basic decency. I strongly believe that the profession as a whole does not merit such an image and that such behaviour should be flagged and looked into”.

The Council of the Kamra tal-Periti finds your behaviour to be completely unacceptable

In January 2017, the Council wrote to Perit X for comments, and the latter replied within a few days, stating that the deposit would be returned to the Complainant. However, more time passed, and the Complainant informed the Council that such deposit had not been returned. Therefore in March 2017, the Council wrote to Perit X again. In its letter the Council stated that “it finds this to be unacceptable behaviour on the part of a member of the profession, and in view of this you are requested (i) to apologise in writing to the complainant for your failure to provide the contracted services and for the delay in settling the repayment of the deposit, and (ii) to return the deposit, both within 2 weeks of this letter. You are also requested to copy the Council of the Kamra tal-Periti with your correspondence with the complainant as well as proof of repayment of said deposit“.

The two weeks passed, and once again no reply was forthcoming from Perit X. The Council sent a reminder at the end of March 2017, asking for Perit X to comply with its request by the 7th April 2017.

Perit X did not reply to the Council’s request, nor was any communication made with the Complainant. The Council therefore wrote to Perit X as follows:

The Council of the Kamra tal-Periti finds your behaviour to be completely unacceptable, and unbecoming of a member of the profession. Furthermore, your behaviour is being considered as an act of disrespect towards the Council and the Kamra. The Council is therefore issuing a formal reprimand in your regard, which reprimand shall be registered in the Kamra’s records.

This communication was copied to the Complainant.

The Council reminds members of the profession that, at all times, it is important to act in a manner which upholds ethical standards and common decency. Periti are reminded that, in accordance with Chapter 390 of the Laws of Malta, conduct which is deemed to be discreditable to the profession may be punishable through the suspension, revocation or cancellation of a warrant.