What a home survey should have found: how a surveyor negligence claim is assessed

Start with the survey level

The RICS Home Survey Standard sets three levels of service, and the standard of care follows the level that was bought. A Level 1 report is a condition summary with no diagnosis and limited inspection. A Level 2 report (the old HomeBuyer Report) involves a more thorough visual inspection, condition ratings and advice on defects that affect value, but still no tests or opening up. A Level 3 report (the old Building Survey) is the most detailed: the surveyor is expected to inspect all accessible parts, follow the trail of a defect as far as reasonably possible, explain cause and likely remedy and outline the consequences of not acting.

A claim that a Level 2 surveyor should have diagnosed the cause of a damp patch will struggle; a claim that a Level 3 surveyor should have lifted an accessible hatch, looked in the roof void and reported the staining there is a different matter. The first question in any assessment is therefore what the client paid for and what the terms of engagement said.

Then what was visible, and accessible, on the day

A surveyor is judged on what a reasonably competent surveyor would have seen and reported on the day of inspection, not on what became visible after the buyer stripped the wallpaper. The assessment reconstructs the inspection: the weather, the furniture and stored items that limited access, which hatches and covers were available, whether the roof was inspected from the ground or a ladder, and what the surveyor's own photographs show.

The surveyor's site notes and photographs are the most important documents in the case. Where they show the defect, or the trail that led to it, the question becomes why it was not reported. Where they show it was hidden, the claim weakens, unless the surveyor should have recommended further investigation and did not.

Then what was reported

The report is read as a whole. Many claims fail because the defect was in fact mentioned, in a condition rating or a limitation paragraph, in terms the buyer did not act on. Others succeed because the report gave a condition rating that no competent surveyor could have given on the evidence available, or omitted a recommendation for further investigation that the standard required.

The expert's opinion is expressed as a comparison: what the standard and the level required, what a reasonably competent surveyor would have observed and recorded, and how the report in question measures against that. Where reasonable surveyors could differ, the report says so. The legal question of negligence is for the court; the expert's job is to make the technical comparison clear.

Measuring the loss

Damages in surveyor negligence claims are normally the difference between the price paid and the true value of the property with the defect known, not the cost of repair. The cost of repair is still relevant: it is the main evidence of the diminution in value, and in some cases the measure the court adopts. The quantity surveying part of the assessment therefore matters:

• The remedial scope, separating what is needed to cure the defect from betterment and from work the buyer would have done anyway.
• A costed specification, built up from measured quantities at current rates, not a contractor's quotation taken at face value.
• Consequential items that are properly part of the loss, such as alternative accommodation during works, where the facts support them.

Where diminution in value is in issue, the valuation opinion is given by a RICS Registered Valuer instructed for that purpose. The quantity surveyor's costed remedial scope is the starting point for that valuation, so the two reports should be prepared to a common schedule of defects and kept consistent.

Practical points for buyers and their solicitors

• Keep the report, the terms of engagement and the surveyor's invoice. The level of service is the foundation of the claim.
• Photograph the defect as found, before any repair or redecoration, and keep contractors' reports.
• Ask the surveyor for their site notes and photographs early. They are usually disclosable and often decisive.
• Take advice on time limits. Six years from the breach is the usual period, with a latent damage extension in some cases, but do not rely on it.
• Consider whether a Single Joint Expert is appropriate. On most residential claims one surveyor expert, reporting on standard, cause and cost, is proportionate.

For surveyors

The same analysis protects a surveyor who did the job properly. Clear limitation paragraphs, condition ratings that match the photographs, a recommendation for further investigation where the trail could not be followed, and site notes that record what was and was not accessible are the evidence that defeats an unjustified claim. Reports that are vague about access, or that rate an element without having seen it, are the ones that end up in court.

This article is general information for professionals and the public, not legal or professional advice, and does not create a client relationship. The law and procedure described are those of England and Wales as understood at the date of publication. Take advice on your own facts before acting.