Surveyor missed 'movement'

Dannyboy2975

Hi all,

Long time reader but first actual post. I recently bought a 1960s semi-detached house in Sussex for £250k (paying full asking price) and commissioned a surveyor to conduct a homebuyers report. The report noted a few things but made no mention of any cracks, movement or subsidence.

After moving in we noticed a crack in the garage wall, running from ceiling to floor, which had been cemented over. We then also noticed other vertical and diagonal cracks in the garage walls and a crack across the concrete floor. Some are to the extent that you can see daylight shining though them from the garden outside. There is definitely no mention of any of this in the report (or otherwise we would have undoubtedly walked away and not purchased it). The garage is attached to the house but there don't appear to be any cracks on the wall adjoining the house.

I contacted the surveying firm and spoke to a complaints handler who said that it is mentioned in the surveyor's notes (which I wasn't shown, given or told about) that there is cracking to the garage walls and the floor and that these are signs of 'old movement' but that he doesn't know why this was missed out of the report by the surveyor. He arranged for another surveyor (from the same firm) to come and inspect the property again and take some photographs. He has been and said he will compile a report and refused to be drawn into telling me anything about his views and thoughts on anything he saw.

Now, had we seen any mention of cracks, movement or subsidence in the survey report (old, recent or ongoing) we would have walked away. I know people say that this shouldn't always be a deal-breaker but for us we were very flexible at the time, in no huge hurry and looking across a wide area. We would have rather walked away and looked elsewhere. Even if, for some reason, we would have still wanted the house, we would presumably have been able to negotiate a considerable reduction in price.

Speaking to solicitors about this, I've received some mixed advice. One has told me that we may have a claim against the previous owner for failing to disclose the defect and others say that we have a potential professional negligence claim against the surveyors but that this can be costly to pursue, with legal costs eating heavily into any potential winnings (unless awarded over £10k which can be recovered from the surveying company).

I have never been in this position before and wonder whether anyone can share their own knowledge and experiences of such matters. Any useful advice on how best to proceed would be greatly appreciated. Especially any ideas on how much this might devalue a property and of how much compensation one might expect from something like this. (Comments on how we should have inspected the property closer initially, got a full structural survey etc. would probably not be useful at this point).

Thanks guys.

davidmcn

Dannyboy2975 wrote: »

Especially any ideas on how much this might devalue a property and of how much compensation one might expect from something like this.

First you need to find out whether or not it is purely historic or ongoing movement. Signs of historic movement might put some buyers off, but in general I wouldn't say it's likely to affect the value of a property (especially if we're only talking about the garage).

G_M

If the cracks are that big I'm amazed you did not see them yourself.

I doubt you have a claim against the seller unless they made a catagorical written statement about the condition of the garage which you can now prove to be false - and which you can also prove they knew to be false.

You will have a better case against the surveyor if, indeed, there is movement and he missed it. The fact it is mentioned in his notes strengthens your case (get hold of copies of those notes!) since he saw, but ignored it (ie did not put it in the report, either deliberately (unlikely) or in error.

If you are lucky, the company's internal complaints procedure will accept responsibility, and you'll get into a negotiation on how much they'll offer/you'll accept. You'll probably need a quote for remedial work from another company (surveyors, builders...).

If, as is likely, they deny responsibility, you'll need a new independant survey (just for the garage) to support any legal action you take. You can claim this cost back if you win.

If your claim is under £10K, legal costs cannot be claimed as it will go via the Small Claims Track. This applies to you, if you win, but also to the other side if they win. The idea of the SCT is to keep lawyers out of it. You can represent yourself.

You can, of course, claim other costs if you win eg court fees, indem=pendant survey to support your claim, travel, time (yours) etc

If the claim is over £10K it will go to the County Court where legal fees ar paid by the losing side.

However, if the movement is historic, you could just fill the gaps. No more movement = problem solved.

princeofpounds

Think GM is broadly right here. The fact it is mentioned in the notes but admitted in the report helps you a lot. If they are performing another survey and would own up to something like that, I would cross fingers that you might be offered a negotiated settlement.

What that might look like depends on whether these cracks are really meaningful or not.

I don't know if surveyor's are like solicitors; sometimes it is better to let them give an informal response first as an official complaint puts you in opposing camps and their liability insurance shuts down how helpful they can be from that point. Obviously don't be strung along or settle for much less than is correct.

If necessary, elevate to a formal complaint in writing (keep it brief; mention no cracks mentioned, cracks exist, surveyor's office stated in notes but not in report, you are disappointed and would like to discuss how to put the mistake right).

Then pursue that process, then you move into court territory.

teneighty

The process is actually very simple.

Go through the official complaints procedure with the firm of surveyors.

If you are not happy with the result go to the relevant Ombudsman scheme, the survey firm will tell you which one they are in.

It will not cost you a penny to pursue this, although you may need to commission an independent report to back up your case.

No need for solicitors or expensive court action.

G_M

teneighty wrote: »

The process is actually very simple.

..... go to the relevant Ombudsman scheme, the survey firm will tell you which one they are in.

I was not aware of this. A quick google

www.surveyors-ombudsman.org.uk.

http://www.rics.org/uk/regulation1/complaints1/

live_long_and_prosper

I successfully pushed my surveyor to an out of court settlement mostly by myself. After I thought I'd got the best offer I did hand the papers to a solicitor to see if he could get any more off them but all he did was add his time to the bill and the surveyors paid both of us. This was a long time ago and the immediate difference between my case and yours is that I had a full survey. There are fewer 'get out' clauses than a home buyers survey and though it has been a long time since my case (and surveyors have tightened up their legalese) the home buyers survey is probably not a rigorous survey. That doesn't make them immune from a negligence case but makes it harder for you and them to agree what should have been surveyed and what shouldn't. You will have to go through their legal bumpf with a fine tooth comb.

As with my conservatory they will argue whether the defect in your garage materially affects the value of the property. My argument was value was irrelevant the and that I had paid for a surveyor to use his professional judgement and experience to report defects. As with my conservatory it could be argued that your garage is a temporary structure. This will go to and fro. You must be absolutely focused on their negligence. They will try and start arguing side issues as above - don't fall for it.

The defects may have been covered with boxes or shelving by the previous owner. You need to ascertain whether that was the case in which you may have to divert your attention to the previous owner.

In a case of negligence you will need to treat it like a crime scene and take multiple pictures with a time and date stamp. Maybe include the front page of a newspaper in the picture. These need to be good pictures not fuzzy mobile phone pictures and also include a ruler so there is some sense of scale. You need as much evidence as you can find - hopefully it won't go as far as a court but the evidence required will be the same as a csi. Make your case watertight.

In the end you will have to have an idea of the value of their negligence to settle. This may be the cost of repair or replacement. You will certainly have to pay an independant surveyor to survey your property and say whether he would have included the defect in his homebuyers report. He may even show other things that may have been missed. You may have to pay a structural engineer to tell you whether the defects are ongoing and/or why they have happened. This of course affects the cost of putting things right and the value of your claim.

You may or may not need a solicitor to pursue a claim. If you enjoy an intellectual challenge as well as being MSE you have little to lose.

Dannyboy2975

Thanks all. Some really good advice here. I really appreciate you all taking the time to give such useful advice.

As an update, I spoke with the complaint handler at the surveyor firm again late last week who said that he had received the second surveyor's report which confirms that the movement is old. He said that it was difficult to tell how old it is but thinks, based on his experience, that it is over ten years old and that repairing the damage would mean repointing the brick work. After apologising again and reiterating the circumstances of the original mistake (i.e. that the original surveyor noted the cracks in his notes but failed to put it in the report), he offered to refund the cost of the survey, plus make a payment for 'distress and inconvenience' of £150. He then asked me what more I was expecting.

I told him that I wanted much more than £150 as I was confident that we could have negotiated the purchase price down much lower than that and told him what I had been told by the solicitor. He said that there was some flexibility in the 'distress and inconvenience' payment and that he would go away and speak to colleagues to see what else he could offer but it would be nowhere near the figure of £10k.

I asked about the possibility of claiming against his indemnity insurance. He explained that this would involve getting estimates to repair the damage, commissioning the work and then the builder invoicing the surveying company directly for the work. However, this would reduce the distress and inconvenience payment (despite my argument that waiting in for estimates and getting work done would cause greater inconvenience).

As it stands now, he will be recontacting me later this week with a potentially renewed offer. If I decline this then we move forward to obtaining estimates for work carried out on their insurance. And if I am still unhappy with the resolution proposed he will send me details of how to complain to the ombudsman.

It seems from the helpful advice above that the fact that this issue is in the garage, means it is perhaps not as concerning as I first thought it might be and that diminution in value might also not be all that great. In this regard I feel somewhat reassured. I also think that the solicitor's suggestion of seeking compensation of £10k sounds a little unrealistic. Plus, I would rather not have to shell out a lot in legal fees if the final award turns out not to be any/much better than an out of court settlement would be.

My current plan of action then is to wait and see what their second offer is and take it from there. Hopefully I can get the company to agree to the cost of repairs plus a reasonable payment for 'distress and inconvenience'. If not, I suppose that I will need to pursue the ombudsman route (and potentially legal route).

I just have a few quick further questions that I hope someone might be able to help out with:
1. Should I trust the second survey that also says that the movement s old, given that it was completed by the same company? Or do I need to get another independent survey done?
2. How much could I expect it to cost to repair cracks in brick work and blocks? (I imagine this question might be impossible to answer without seeing pictures, knowing the extent of damage etc.)
3. Does anyone have any tips on how to get the best out of court settlement? How much could I push for as a payment for 'distress and inconvenience'?

slopemaster

Dannyboy2975 wrote: »

My current plan of action then is to wait and see what their second offer is and take it from there. Hopefully I can get the company to agree to the cost of repairs plus a reasonable payment for 'distress and inconvenience'.
1. Should I trust the second survey that also says that the movement s old, given that it was completed by the same company? Or do I need to get another independent survey done?
2. How much could I expect it to cost to repair cracks in brick work and blocks? (I imagine this question might be impossible to answer without seeing pictures, knowing the extent of damage etc.)
3. Does anyone have any tips on how to get the best out of court settlement? How much could I push for as a payment for 'distress and inconvenience'?

Sounds like a good plan.

1) I would say, yes - just make sure you hang on to that survey in case you need to sue them later. And make sure that whatever you sign when you agree a settlement doesn't preclude that possibility if it should turn out movement is ongoing
2) get quotes
3) I would focus on getting the repairs done, which puts you back in the position you should have been, with no loss of value. TBH their £150 sounds reasonable to me.

I too had a somewhat similar case a long time ago.
(Surveyor missed dry rot!)
I settled for payment for the work to be carried out.