Member Article

COVID-19: Adapted practices could put surveyors at risk of professional negligence claims

A prominent East Midlands professional negligence expert believes that temporary lockdown-imposed disruption to the house buying process may have actually prevented some permanent scarring from COVID-inflicted wounds.

But as transactions resume, proceeding with caution is the advice being given.

The housing market endured 51 days under lockdown, an unimaginable event pre-pandemic, which came to an unexpected end following a government announcement on May 13. The surprise reopening spurred on many prospective purchasers, with property portal, Rightmove reporting its busiest day on record just two weeks later.

But, professional negligence solicitor, Alison Neate from leading East Midland’s law firm, Smith Partnership, operators of the professional negligence online service Claims Against, warns that despite a clear yearning from buyers, following the steps in the process carefully is vital in order to avoid any costly problems from arising later down the line.

“For most property purchases, particularly those facilitated by a mortgage, a valuation or survey is a necessary step in the buying process and a requirement in lender’s conditions. Under the lockdown restrictions however, surveyors were not permitted to enter properties to conduct surveys or valuations, which is a main cause for delay. Buyers therefore, could have been tempted to avoid delays by just relying on a desktop or drive by valuation.

“Typically, conditions such as damp, wet and dry rot or woodworm are not visible on a surface inspection, but a survey could uncover them. The common law principle of buyer beware applies in house purchases, which means that if these conditions began to cause an issue after a sale, it would be at the buyer’s risk and therefore, unlikely that they would be able to obtain any redress from the seller.

“The buyer will be faced with the cost of putting things right, which depending on how serious the problem is, can be expensive, dramatically reduce the value of the property or render it unsalable. Without a survey, there is no opportunity to look to the surveyor for compensation either, but with one, a claim can be made against their practice’s professional indemnity insurance.”

Going forward then, rather than rushing to complete the process, Alison advises buyers to keep the following in mind:

• Obtain a survey – Unless you have expertise in property or are re-mortgaging, you should always obtain an appropriate survey that involves the physical inspection of the property.

• Be careful to rely upon desk-top or drive-by valuations – Some lenders will offer valuations based on a comparison of similar properties in the area or on a drive-by view. Although these can be conducted remotely, following COVID-19 guidelines, they do not allow a buyer to pursue a claim against the surveyor for a breach of contract if problems were later discovered.

• Don’t be driven by price – Most surveys are commissioned by the buyer so it can be tempting to simply opt for the basic one, which will also be the cheapest. But rather than being driven by the price of the survey, be led by the age of the property. The older the property, the more detailed the report needs to be.

• Raise your concerns – If you have areas of concern about the property’s conditions, draw them to the attention of the surveyor before their inspection. If the type of survey you have requested does not cover that area, your surveyor should discuss other options with you.

• Read the report carefully – Once you receive the survey report, be sure to read through it carefully and raise any questions you have with the surveyor in writing. Some of your queries may require legal input, so do not hesitate to discuss them with your conveyancer too. They will be able to direct you to the surveyor or raise the questions with the seller.

• Make a claim – If you discover a problem once you have purchased the property, contact your surveyor. If necessary, use their complaints process or ask them how to make a claim against their professional indemnity insurance. Where the problem is costly to resolve or will impact upon the saleability and value of the home, you should consider taking legal advice from a lawyer who specialises in claims against surveyors.

“A lot of these types of claims can be pursued on a no win, no fee basis, meaning that in the case of an unsuccessful matter, there will be no financial risk to you. Services, like Claims Against, allow enquiries about claims to be made online and are then dealt with directly by a solicitor, without the need to involve any third parties or middlemen.

“And professional negligence claims are not just limited to surveyors either. Any professional you enlist the expertise of owes you a duty of care and if breached, could leave you to perhaps suffer financial loss and damage, and to pick up the pieces. This may include for example unprofessional builders, financial advisors or even claims against solicitors and other legal specialists.”

Smith Partnership has a network of offices situated in Derby, Leicester, Burton upon Trent, Stoke-on-Trent and Swadlincote, with easy access to legal expertise across the East Midlands.

This was posted in Bdaily's Members' News section by Smith Partnership .