Suing a surveyor

[Threesoundslikealot]

We've had to do a lot of very expensive work to our house following structural problems. We only bought just over a year before the problems became evident, and an independent surveyor and a builder looked at our Homebuyers' survey and pointed out that the surveyor had failed to point out very basic issues that suggested big problems. We contacted our home insurance who were progressing preliminary legal action but today we got a call to say that as the survey was through the building society's surveyor, we didn't 'contract' the survey and therefore can't sue. I don't really understand this as we paid several hundred pounds for the survey and chose to have a Homebuyer's (never again) rather than a valuation so how did we not commission it?

We are very upset at this as we are now in a dreadful financial position and recovering some of the costs through legal action was a (probably pipedream) hope of getting back on some sort of financial footing.

Any advice? I can't see any reason at all why the mortgage company would sue on our behalf. We have doubled our borrowings and the house is now structurally sound so they won't care about it.

[Rangirl]

It is probably worth getting a solicitor to check it out on your behalf When you are trying to take action through your Home insurance they can try and get out of it But if the report was not instructed by you there is a problem In any case it is notoriously difficult to successfully sue surveyors A quick read through the exclusions in any Home report make that clear But definitely worth taking your own legal advice

[JugglingLife]

You need to contact the building society, or whomever arranged the survey, we had a similar thing and they can back out, resurveyed and then paid up. No arguments whatsoever however it was within a couple of months of moving in. Good luck.

[Threesoundslikealot]

Rangirl, as far as we're concerned, we instructed the surveyors, not the building society. But I realise there may be technicalities we don't understand.

We've asked another solicitor to look at it, but I was hoping there might be someone on here who was familiar with these situations! We know it's hard to sue so our hopes weren't great but we do have a pretty good case even taking all the surveyor's caveats into account.

[JugglingLife]

You might not need to sue, we didn't. What does your mortgage company say?

[Threesoundslikealot]

We're hoping we can settle rather than go all the way. The mortgage company hasn't been involved yet. We went straight to our home insurance. Is it worth talking to the mortgage people?

[Rangirl]

Sounds good JFK Certainly worth a try

[Rangirl]

Normally a valuation survey is instructed by the Lender and says on it for Lender purposes only no obligation to purchaser etc Home buyers normally instructed by purchaser and does give right to sue but so many caveats it is really difficult Not quite sure how it works if lender instructs homebuyers as I don't think I've ever seen that I am not keen on homebuyers reports(can you tell ) and normally recommend structural for older housesBut Defo worth contacting Lender What have you got to lose Would be interested to know what they sayGood luck

[Threesoundslikealot]

We wanted a full structural but there was a cock up and a homebuyers got instructed instead, and the wait for a structural was so long it would have caused problems in our chain. Long story, but I was unhappy at the time and you can imagine how cross now. But it was US that paid for it and asked for it, and us that are listed as clients on the survey, which is why I think this solicitor is talking tosh. He's just taken over the case and his predecessor had no problem with it, and we were just waiting for one supporting report before filing.

[Threesoundslikealot]

Thanks to all offering advice on here by the way.

[JugglingLife]

Yes, just speak to the mortgage company, we were staggered at how easy it was and how quickly they paid up. I think it was a full survey, not a home buyers report though.

[Threesoundslikealot]

Did the mortgage company pay, Juggling? I'm a bit confused. Why would they?

[JugglingLife]

Our mortgage was with abbey national, Santander, they arranged the survey. The surveyor was working on their/our behalf.

[Threesoundslikealot]

I see. We'll talk to them if this solicitor continues to insist on his position. I imagine they may be keen to contradict him!

[JugglingLife]

I've re-read your OP (to make sure I'm not being a div), and it certainly sounds as though the issue is with your mortgage company.

[DeBeers]

Yon have 2 hurdles to cross:

1. To prove surveyor had an obligation to you rather than mortgage company or whoever engaged him. This could be because you entered into a contract with him/her for their service.
   
2. Even if he/she has a legal obligation to you, you would need to show he/she had been negligent or breached their contractual obligations to you.
   

You need to find the original paperwork engaging the surveyor and take to a solicitor. You new a solicitor who deals with contract and professional negligence claims. You would also need expert evidence from another surveyor who could categorically state that the first surveyor was negligent or in breach of contract. Surveys are often quite subjective and whilst he/she may have fallen below standard you wanted, that may not make them liable to pay you compensation. Finally, you would need to show a clearly identifiable loss - would that be cost of works to repair? Would you argue you wouldn't have purchased the house if knew true picture? Be careful not to spend lots on legal fees without solid advice that you have a case.

[Threesoundslikealot]

Why's that? Sorry, am probably being very dim! Is this because this new solicitor is saying it's their survey? Because we disagree with that. We commissioned the survey, not them. But I can't see anyway why the mortgage company would be interested in acting because we've paid a fortune and now the house is fine, so their investment is safe.

[Rangirl]

I am in Scotland where the position may be different but even if you clear the hurdles mentioned by Pp your claim is not for the money it has cost you to do the repairs but instead it is for the difference if any in the value of the property taking into account the defects missed by the surveyor

[JugglingLife]

Three, did you book your survey through the mortgage company, or did they just do a valuation and you booked the survey independently?

[Rangirl]

That was certainly the advice clients of mine got last year from an advocate I would very surprised if lender got involved but as it worked for a pp it must be worth a call

[Threesoundslikealot]

We are completely broke (thanks to all this!) so absolutely can't spend a fortune on legal fees.

We would NOT have touched the house if we'd known about these things and we have had to spend almost half the purchase price again fixing them (and we're in London if that gives you an idea of the sum). We only want to look to recover just under half of this to keep it under the litigation threshold. We have another surveyor who saw the property once the issues became apparent and is writing a report to point out what the other surveyor missed. One of the major points that should have been a major red flag is raised as a 'green' point, one (serious damp) is explicitly ruled out, and two other serious issues aren't mentioned at all. Had we not fixed the problems, part of our house would have fallen down.

Until the new solicitor popped up, our previous solicitor was content that we have a case, assuming we have the other surveyor's report, which we are waiting for.

[DeBeers]

Who found the surveyor? Who directly paid the surveyor (This is different to the mortgage company recovering the cost of the surveyor from you)? The surveyor may not owe you anything. I don't have any legal obligations to you, unless we enter into a contract, or I have a duty of care to you, or I have some other legal obligation to you. What legal obligation did surveyor have to you if you were not his client? It appears his client was mortgage company. You have placed reliance on his survey, that's not the same as him legally having an obligation to you.

[Threesoundslikealot]

Juggling, from what I remember, we told the mortgage broker what survey we wanted, and paid for it through him. So presumably it did go through the lender that way.

[DeBeers]

Your solicitor would not be advising you to seek half of what you think this has cost you if they genuinely believed you had a claim. I am unclear what you mean by litigation threshold and wonder if that's something linked to what your solicitor proposes to charge you.

[Threesoundslikealot]

DeBeers, the questions above are excellent and obviously the legal ins and outs that we need advice on. The client name on the survey is ours, not the building society, but obviously that could be meaningless legally. We paid for it upfront through our broker, but I don't know whether it went to the surveyor directly or the mortgage people, so need to check that.

And I'm confusing the issues of what we have been told by the acting solicitor (that we have a proceedable claim), what a close friend who litigates for insurance companies has told us informally (about the threshold that many firms will have for litigating rather than settling) and our own intentions which are only to seek the costs of the work directly attributable to putting straight the structural costs ( all recorded and receipted etc). The other costs are not DIRECTLY attributable to the faults but arose from further structural issues we wouldn't have expected a Homebuyers to pick up on, and of course all the additional work we then needed like a new kitchen etc. If I made it sound like we were artificially not claiming to stay below a certain amount then it came out wrong.

As the current solicitors are through our insurance, they are charging us nothing. Our enormous confusion comes from the fact that our case was first put through a sort of clearing solicitor, whose job is to bat back pointless claims, and then passed on to another person who had started preparing our case, and it is only the third solicitor who has spotted what appears to be, if right, a very simple hitch.

We are massively kicking ourselves for many reasons, not least that we started on the work before trying to sort all this out. We were panicking and inexperienced and pretty stupid, now I look back.

[DeBeers]

OP trying to understand what has led to the latest news that you're not in a 'contract' with surveyor. First question when suing someone is 'do they have money?' Answer here is yes as surveyor should have professional insurance or his employer will have. Second question is 'on what basis can I sue?' Ie he breached his contractual terms or he has a statutory duty he failed to comply with, or he owed me a duty and was negligent etc. Those 2 questions should be asked and answered in first 60 seconds of a lawyer looking at a civil case. I am struggling to understand how the basis of the surveyor's legal obligations to you could have been thought about at the outset for the legal advice to now change. Was the case with in-house insurance company legal team? May well be no experienced or qualified lawyer looked at this until your latest person who asked these 2 questions and answered Q2 in the negative. Have your insurers now shipped this out to a firm of solicitors? I'm wondering if the initial check is carried out by some clown at the insurers who thought it sounded like an ok case so then sent out to law firm where someone has looked at it and only asked themselves Q1 and Q2 now. I should add this is not my area of law but a first year law student should be asking themselves Q1 and Q2 and I worry that you've been given possibly false hope. Contractual obligations are often easiest to prove. Doesn't mean the surveyor didn't have a duty to you under another head of law even if no contractual duty. Ask current solicitor (if that's what they are) for a letter or email explaining why they now say you're not a party to the contract when your name appears as the client and you paid for the survey.