Any advice on surveyors negligence claim?

Emma_Dilemma

I find myself in a very worrying and confusing sitiuation and all help will be appreciated. Sorry its a long thread, trying to give all the info I have.

I purchased a property 3 years ago when I exercised my right to buy from local authority.

The results of this purchase have been disastrous.

I obtained an agreement in priciple from a lender which would be substantiated on the valuation report provided by a chartered surveyor whom I was to pay the lender to instruct.

The valuation was favourable, no issues picked up (I know this kind of report only outlines serious defects, but I had been living at the property for 4 yrs so was happy to accept responsibility for problems not covered).

Subsequently I got my mortgage and have been happy in blissful ignorance for three years. If only I had known...

I applied to transfer my mortgage to another lender, who again gave me an AIP, if backed up by the valuation. But this time round was entirely different.

On entering my property the surveyor started asking questions with regards to the construction of my property, what system buid it was, and did i have certificates of repair from the council. It all went over my head, at which point he said that the flat was made of concrete, but this meant nothing to me, I thought it was brick, it looked like brick. He said he would have to investigate and would be contacting the council with regards to this. I thought nothing more of it as I had no problems with survey before and thought perhaps surveyor was overcautious or wierd or something, lol. Before he left he asked if I had my original valuation, which i did. It clearly identified the walls being of brick construction. Which this surveyor now told me the walls most definetly are not brick, and the valuation he gave on that assumption is very innacurate if the property is not repaired to mortgaeable standards. He said he was alarmed by the innacuracy of the valuation. Still that was his opinion and I would wait for him to finish his enquiries.

Last week i had a phonecall to say my mortgage application had been denied based on the construction being non standard concrete and considered defective based on what the surveyor found out from the council (allegedly). So I phoned the council who said as far as they were aware it was fine, not defective at all. So who was right? I had to find out.

I instructed a surveyor to carry out a homebuyers report (i made him aware of the reason for this report), which was done today. Straight away he indicated the flat was non standard system built. But could not say whether defective or not without making enquiries. He called building control at the council who confirmed that the property is system built, not repaired, so no certificate, only externally cladded with fake brick facia and insulation.

The surveyor today almost insisted I should put a claim in against the original surveyor as in his experience its a straight forward negligence claim, which he would be happy to provide an expert witness report for at no extra cost if need be. He said the surveyor owed me a duty of care regardless of who he was instructed by and that my loss is substantial and therefore I have a claim for damages. He also commented that even being a basic mortgage valuation, that it was an easily identifiable problem and any competent surveyor of equal ability and knowledge would not have missed it. And the build would not have changed since then, as bricks and mortar dont magically turn into concrete.

But then there is the issue with the council, the surveyor today said he's not really into the right to buy law but is sure they had a legal obligation to disclose the defects to me (which they didnt) and that the valuation from them should reflect this (which it didnt). He said Id probably find it easier persuing the surveyor, as, my actual loss is based on his professional negligence... But that I might have to sell the flat at auction to realise the actual loss between what it is worth and what it would be worth as a brick construction as it doesnt have a mortgageable value in its current condition. But I dont want to move out and why should I? I have three kids and would have nowhere to go in the short term, and private rent is too expensive.

And where is the justice in the councils part who have taken far too much money than it was worth for this property? I cannot sue both for my loss, but both are answerable.

I cant really afford to instruct a solicitor at this point so Im really stumped.

Any suggestions?

silvercar

people sell houses for what someone will pay, I would imagine you have a straightforward claim against the surveyor. He will have professional indemnity insurance that will pay out on the difference in value at the time you bought. No need to move unless you want to.

Milliewilly

Your main problem is you say you cannot afford a solicitor as this will be long and expensive. My case took 4 years and cost £13K but I got 75% costs back when I won. You do not get 100% of your costs for litigation cases.

From what you have said you do have a case against your Surveyor for the loss in value due to his negligence. You will need an independent statement of what the negligence was and what the loss in value is. My house at the time was rendered un-mortgageable as your flat will be but this is not such a problem as you will be compensated for the difference in values.

Ignore the posts that will follow saying you only had a valuation so you are stuck - you are not. There are several cases in Law to support this.

You have 7 years to take action from when you purchased.

You are not expected to know about the construction of your property that's why you employ a surveyor (that is when they come back and say why has it taken 3 years to claim in an attempt to get out of paying).

I can't comment about the Council aspect.

Good luck your Surveyor has really dropped you in it.

Emma_Dilemma

I think I am actually going to have to persue the council first as I can use the local government ombudsman for free to come to a resolution. I have plenty of evidence against them, as they didnt inform me of my home being defective which is required of them by law. And they misled me by selling it me at a price that was reflective of a standard construction property.

I have been in touch with a prc repairs company who have said that when dealing with prc flats, a full repair is not recommended as it doesnt pull the flats out of the defective category so they are still unmortgageable and so the repair is pointless and not cost effective. But they can be reinsulated and cosmetically altered which can slightly extend their life expectancy but generally does not warrant a valuable asset.

So basically my flat is worth nothing. Therefore I am going to persue the council for damages to the extent of the full market value of my property if it were a standard construction as they sold it to me. They may argue that it is suitable for a cash sale, but without forcing me to auction my home this cannot be realised, and frankly I can't see any investor making a cash purchase on something that cannot be repaired and will innevitably be demolished, thus resulting in a loss.

I can see a council agrument being that I should have got a surveyor before I completed the sale. Thats true, and I did. But the surveyor was negligent, and in any case the surveyor has a duty of care to me and my lender not to the council. So that is not a good reason for argument, as it has nothing to do with their own negigence in the first place, and surely it can be said that had I been made aware of the defect in the first place by the council I would have neither wanted nor been able to complete the purchase.

I think I have this right, feel free to comment!

sonastin

The council would be right in that the surveyor also contributed to the problem. But I think that if you made a claim against the council, they would be able to bring the surveyors in as co-defendents so you won't have to choose between them in deciding who to claim against.

Good luck and I hope you succeed...

ILW

It sounds like the original survey was just a valuation report for the lender. I believe this would not give you any right to sue them. if you had paid for a full survey it would have been different matter.

iamana1ias

In what way is the flat defective? Have the walls collapsed? There are thousands of council flats built out of concrete instead of brick - that doesn't make them all defective.

Have you not hung anything on the walls?

I know someone with a concrete built flat in London who has never had a problem with getting a mortgage. I believe the current mortgage is with Abbey.

Emma_Dilemma

ILW wrote: »

It sounds like the original survey was just a valuation report for the lender. I believe this would not give you any right to sue them. if you had paid for a full survey it would have been different matter.

There are many examples in tort law where surveyors have been sued by a third party interest with regard to duty of care. Especially in residential sales where it is established that up to 75% of homebuyers rely on a mortgage valuation. such examples are :

Hedley Byrne v Heller & Partners Ltd and Smith v Eric S Bush

And also the fact that the surveyors report clearly states that that he acknowledges a duty of care to the lender and the applicant.

I know I have a good case against both, I just dont know who would be considered most at fault and I am sure I can't sue both !!!

Emma_Dilemma

iamana1ias wrote: »

I know someone with a concrete built flat in London who has never had a problem with getting a mortgage. I believe the current mortgage is with Abbey.

Not all concrete builds are considered defective, some are fine. Mine howerever, is on the defective list of the defective dwellings act. It is a Wates System built property, they were built cheaply in the 50's to accomodate council tennants in the post war housing shortage. They were built as a temporary measure as they were cheap and quick to build. They were not meant to last much beyond 25 years. (I have spent all weekend researching this). But hey ho a lot are still in council stock, unfortunately in my case they have sold me one without my knowledge and charged me full whack as though it were a standard built property.

Emma_Dilemma

sonastin wrote: »

The council would be right in that the surveyor also contributed to the problem. But I think that if you made a claim against the council, they would be able to bring the surveyors in as co-defendents so you won't have to choose between them in deciding who to claim against.

I didnt realise that could be done, but i've looked it up and it seems if I sue the council for the full damages, they can either call in the surveyor as a third party defendant (joint liability) or pay full damages and then try and sue the surveyor themselves after.

thanks for that, I can think straight now!

lincroft1710

A property for which a mortgage cannot be obtained is not valueless. It is still saleable, but the market will be limited. As you have obtained a mortgage from your original lender, then there is a possibility they would lend again to a subsequent purchaser. The term "defective dwelling" was used for those dwellings built of non traditional materials or by non traditional methods where it was shown or believed that there may be problems in the future.

Even if you did successfully sue the council, the most you would get back is the difference between the discounted value of a flat of non traditional construction at the time you bought and the price you paid the council. As you are no doubt aware if either of your lawsuits fail, your legal bill will be horrendous.

It may be worth seeing if you can negotiate with the council to put you back in the position you were before you bought - they buy the flat back from you for the price you paid and grant you the same tenancy as before. If your mortgage payments were in excess of the rent then they reimburse you for the difference.