3rd Party Copies and Assignments
Our Surveys are generally produced under contract to a Client. We are sometimes subsequently approached by unintroduced parties with requests to provide them with (free) copies of our Survey drawings. Unfortunately, such provision to these 3rd parties is not quite as straightforward or reasonable as apparently might be hoped.
RICS generally advises: a firm should not allow any party with whom it doesn't have a contract to rely on a report. To our understanding, there are at least 14 issues, depending on the circumstances, which have bearing on feasibility, inherent costs and risk without reward in providing copies of Surveys to 3rd parties:
1. Client Privacy – The Survey (especially, for instance, any included photographic images) may contain personal information and fall within the remit of the GDPR/DPA. Distribution could potentially constitute or lead to a criminal offence. This would need to be reviewed and express consent may be required from the original Client or other parties and/or time spent purging/redacting personal information from the reports / drawings / photographs.
2. Client Interest – In our professional capacity, the Surveyor aims to act in the Client’s interests. Providing a copy of the Survey might be detrimental to those interests (for instance, providing information inherently highlighting property deficiencies to a potential purchaser or if the Client and the 3rd party are in dispute or are competitors). As such, it is our policy not to provide copies without the consent of the original Client.
3. Non-Disclosure Agreements - The Survey may have been subject to some form of non-disclosure agreement (NDA). This would need to be checked and potentially the original Client may need to provide their consent.
4. Indemnity Risk - Our Professional Indemnity Insurance underwriter in particular places on us limitations regarding reliance on our Survey data by 3rd parties. This is because such reliance may introduce an indemnity risk. So, the basic premise is not to extend use to 3rd parties unless contractually obliged to do so and certainly not without controls and limitations imposed - for instance regarding expected accuracies, purpose, scope of the study, original contractual terms & conditions and limitations of liability, etc. - without inclusion of which the recipient might not legally be bound. Which all itself takes time to prepare and sometimes requires the expense of seeking legal advice.
5. Property Purchaser - Buying a property does not entitle the purchaser access to our Survey of the property. In keeping with requirements of our underwriters, our standard survey contracts may extend a right for the original Client to formally transfer their contractual entitlements to another party (A1) and then from A1 to a further party (A2) – but no further. We would extend copies and letters of reliance to those parties*. As such, a property purchaser may be entitled to rights as a Transferee (A1 or A2) but this is subject to a formal notification to us of the transfer of rights by the holding transferer such that indemnity risk is not extended to cover multiple parties.
6. 3rd Party Content - Some of our survey drawings contain 3rd party content (for instance Ordnance Survey maps) which are specifically licenced – in most cases at an annual cost. Distribution by us and use of this content by a 3rd party would likely be in breach of licence without purchase of an extension or permission, as applicable. This would need to be checked, acquired and billed accordingly or the data removed from the copy, if applicable.
7. Client Copyright – Sometimes the Client retains copyright of the drawing in whole or in part. In this case we would not be permitted to distribute the drawing without their consent. This would need to be checked.
8. Commercial Practice - Generally, we provide our Surveys to Clients under contract. As such, no rights are extended to 3rd parties. So, we have no commercial incentive to expend time and resources providing services for free to persons to whom we have no obligation or relationship. This is like buying a house and contacting the previous owner’s gardener and demanding they should come and trim the hedge for you for free. Or expecting a bookshop to give you a free copy of a book that the vendor of your new house happened to buy last year.
9. Contract Dispute - The original Client may be in breach of contract by perhaps not paying for the original Survey or may have an overdue account. As such, their rights of use may have been withdrawn and/or may be contractually void (or voidable) whereby the Surveyor might be doubly compelled on commercial grounds to resist providing copies to anyone else without payment, particularly if doing so might be beneficial to the original Client. This needs to be checked.
10. Old Data – There are two main concerns regarding the age of Survey data. Firstly, natural or built features may have changed since the Survey was undertaken. It is necessary for the Surveyor to introduce disclaimers or clarifications to inform the recipient that the data may not be up to date and no responsibility will be taken for such discrepancies. Secondly is the matter of the period of limitations to the original Contract - from the date of the Survey. To avoid the risk of extending the period of limitation and to inform a recipient for their own interests, the Surveyor needs to introduce disclaimers accordingly.
11. Not a Library - If a party has legitimate use of our survey drawing (for instance as a designer, contractor or agent of the original Client), then a copy would be distributed to them by the original Client. There should be no reason to approach us directly. Our work is generally very limited (within the scope of a Client’s overall project) and is undertaken for a fixed price. This does not extend to subsequently providing a service distributing copies to a Client’s various agents and with all the above checks and provisions that this entails.
12. Fixed Scope of Work – Our Surveys are undertaken as a fixed scope of work for a fixed fee. This does not include subsequently freely providing any extensions, updates or additional information/details for the Client or a transferee party. And definitely not for a 3rd party. This is like expecting a painter & decorator to paint your kitchen for free because they were previously contracted to paint the lounge.
13. Copyright - As per usual practice, we retain copyright of the Survey drawing and extend the Client a limited right of use (but not ownership). Copyright is a standard protection for most published works. Here it is important, not just with the content of the drawing itself, but also due to the inclusion of expensive reusable templates or styles within the drawing, whereby the value of the Survey drawing is possibly far less than the sum of its parts. This all remains our intellectual property for use and resale. Not the Client's, beyond their specific and limited right of use which is explicit to the contract. We risk loss or undermining of our copyright, if further copies are distributed without stipulated constraints in keeping with the original provision, which itself takes time and cost (possibly including legal contracts advice) to word and prepare.
14. Not Finders Keepers - Where a document might be assumed to be in the public domain where is it accessible on the internet, it is important to check and understand the terms of use of the publication medium/platform. For instance, where the document is stored on a local government Planning Portal, there will be stipulated terms of use such as
Copyright notice:
Plans, drawing and material submitted to the Council are protected by the Copyright Acts (Section 47, 1988 Act).
You may only use material which is downloaded and/or printed for consultation purposes, to compare current applications with previous schemes and to check whether developments have been completed in accordance with approved plans. Further copies must not be made without the prior permission of the copyright owner.
15. Our Default Position On Unauthorised Use - An unintroduced 3rd party who has acquired an unauthorised PDF copy of our survey (perhaps downloaded from a Planning portal) and is requesting a free copy of the DWG (or even enhancements and additional details) should not commercially expect it and should understand that they have no contractual or statutory right to it. Any use they may already be making of the PDF beyond the terms and conditions of the Planning Portal is not condoned, authorised or indemnified by us. We assert that they may not so use it or rely on it and we assert our copyright over the content under the Copyright Acts (Section 47, 1988 Act).
* Letters of reliance intend to set a scope for usage and liability, aiming only to bring A1, A2 and financers to contractual equivalence with the original Client. In particular, this should not increase the scope or scale of the indemnity including the number of transfers or timescales - contractual limitation is 6 years from the date of the survey, so such transfer should not expect to freely introduce a later start date or extend the term of limitation (deeds are often expected and which might imply a 12 year limitation).