When investing in a property, often if not at all times, you will rely on the advice of a skilled professional including builders, surveyors, architects and project managers. Mistakes made by a professional in the construction or conveyance of a property can lead to serious financial loss.
Most professionals have professional indemnity insurance to cover their mistakes and if you can make out the elements of a negligence action i.e. it can be proven that you were owed a duty of care, the professional fell below the standard expected of peers in their industry and you have suffered loss as a result of that, then you may be able to claim compensation.
Do I have a claim against a professional?
Professional negligence occurs where a property professional fails to perform his responsibilities to the required standard. A professional negligence claim brought by the professional’s client may be based on one or more of the following:
- Breach of a contractual term (express or implied).
- Breach of duty of care owed in the tort of negligence.
- Breach of fiduciary duty.
- Breach of statutory duty.
Where a duty is owed in contract or tort, you must establish that there has been a breach of that duty. You must show that the professional did not comply with the requisite standard owed. Broadly speaking, negligence is established if the professional has made an error which no reasonable member of his profession, operating in similar circumstances, would have made. Where such errors cause a financial loss, claims can be pursued against the relevant financial adviser.
Professional Negligence: The Basic Requirements
The tort of negligence has three basic requirements. All of these must be evidentially proved on a balance of probabilities (i.e. that they are more likely than not):
- Duty of care – The defendant owed the claimant a duty not to cause the type of harm suffered.
- Breach of duty – The defendant breached the duty owed.
- Causation – This has two elements, both of which must be proved ie (a) factual causation in that the claimant must prove, but for the defendant’s negligence, they would not have suffered loss and (b) legal causation or remoteness in that the defendant’s negligence was the legal cause of loss.
Examples of Negligence Claims against Property Professionals
The property industry is large and diverse with different professions offering different services. The following are commonplace examples of negligence by professionals in the property industry.
Professional Negligence Claims against Surveyors
All surveyors owe their clients a duty of care. Surveyors are regulated by a professional body called the Royal Institution of Chartered Surveyors (RICS). The RICS holds itself out as promoting and enforcing the highest international standards across the built and natural environment. The RICS Rules of Conduct are mandatory rules for all its’ members, students, trainees and all firms it regulates.
How can Surveyors be negligent?
Examples of cases where a surveyor has fallen below the standard of care includes:
- Failure to inspect a property accurately: for example a surveyor may fail to discover latent defects such as dry rot, woodworm, a leak or defects in the underlying structure of the property.
- Failure to identify a subsidence issue: if a survey report is requested then the identification of subsidence is a key aspect of the report. If it can be shown that a surveyor exercising the due care and skill expected in the profession would have discovered the issue and the property would not have been purchased if the subsidence was known about in the pre-contractual searches stage, then you may be able to claim compensation.
- Over-valuation of a property: if a valuation report transpires to be over-valued and you have purchased the property at above the market rate, then you may have a claim for damages against the surveyor.
How much compensation can I get if my RICS surveyor has been negligent?
If it can be proved that the surveyor owed a duty of care, the surveyor by act or omission breached this duty, and the breach caused loss to you, then you have a claim for damages. The courts usually measure damages in a surveyor’s negligence case as the difference between the price paid by the buyer of the property and what the market value of the property actually was.
Professional Negligence Claims against Conveyancers
If you have purchased a property, you will either seek the advice and representation of a solicitor specialising in conveyancing or a licenced conveyancer. If you have relied on a conveyancer’s services and the advice and work done has (for example) resulted in a purchase or sale falling through or the price of the property to decrease, then you may be able to claim compensation for conveyancing negligence for your financial loss.
How can a conveyancer be Negligent?
The following are examples of negligence by a conveyancer:
- Incorrect investigation of title e.g. discovering the seller does not have title absolute.
- Restrictive covenants not being investigated or warned about. When a restrictive covenant is discovered in the Official Copies of Title then it usual that a conveyancer first seeks a quote for restrictive covenant insurance; if the costs are prohibitive then seek a release of the covenant from the person with the benefit (PWB); if that fails then seek a release of the covenant by way of application to the Upper Tribunal (Lands Chamber). However, a negligent conveyancer may approach the PWB first (which then in turn means an insurer will not provide a quote for insurance).
- Failure to ensure all building regulations certificates and planning permission consents have been provided by the seller before exchange. If it later transpires that material building works took place without the necessary consents, the current owner (i.e. the buyer) will be liable for the necessary failures in getting consent. In serious cases, for example where listed building consent or conservation area consent is not obtained, the time limit for enforcement action is unlimited.
Who regulates licenced conveyancers?
Licenced conveyancers are also regulated by the Council for Licenced Conveyancers (CLC), which is the specialist property law regulator. The CLC provides regulation for those conveyancers who do not practice as solicitors, but instead are specialists, who have been trained only in conveyancing. The CLC investigates misconduct, takes disciplinary action and sets training standards for licensed conveyancers.
How much is my claim worth if my conveyancer has been negligent?
Quantification of losses is a significant part of any negligence claim. It is likely that expert evidence will be required to ascertain losses (usually from a surveyor, valuer or forensic accountant). A general rule of thumb is that the starting point will be the reduction in the value of the property as a result of the negligence from the conveyancer.
Professional Negligence Claims against Architects
Clients instruct architects as highly skilled construction professionals to alter or design buildings. All architects must act with reasonable care and skill expected by their peers in the profession. If an architect has made an error or you have suffered a loss due to an omission which is due to a defect in their designs, then you may have a claim for compensation.
How may have my architect been negligent?
Common examples of claims against architects include:
- Incorrect budget planning, for example in Riva Properties Ltd and others v Foster + Partners Ltd  EWHC 2574 (TCC), the court held that the architect firm failed to identify key constraints for the project (for example the client’s budget and negligently advised that the property development could be value engineered from £195 million to £100 million).
- Negligent misstatement relied upon by a property developer (Hunt and others v Optima (Cambridge) Ltd and others  EWCA Civ 714).
- Negligent building design advice.
- Poor project management.
How long do I have to start a professional negligence claim against an architect?
There are strict time limits in place for commencing a claim against a negligent architect. The limitation period for suing a professional in tort is usually six years from the date the cause of action accrued and/or the loss was suffered (section 2, Limitation Act 1980).
The time limit for suing a professional for breach of contract is six years from the date of the breach of contract (section 5, Limitation Act 1980).
Alternatively, section 14 of the Limitation Act 1980 provides that in certain circumstances a claim could start three years from the earliest date on which the Claimant had both the knowledge required for bringing a claim for damages in respect of the relevant damage and a right to bring such a claim.
Therefore, limitation can be a complex issue in a claim with multiple different limitation dates. It is vital to seek legal advice as soon as you become aware that you could have a claim against the potential negligent architect.
City of London Specialist Professional Negligence Lawyers
We specialise in professional negligence claims and have years of experience in handling and resolving negligence claims. Our lawyers have market-leading experience of providing bespoke legal advice and bringing complex claims to settlement. As a leading law firm regularly featured in the news and media and with a track record of success, you can be assured your negligence claim will proceed with precision and care.
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before advising on the appropriate course of action in order to reduce time and expense. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our negotiation skills are first-class. If required, we are extremely experienced and capable at navigating our clients through the litigation process.
Clients hire us because of our extensive experience in litigation disputes – when necessary, we know when to go to court and we know how to litigate.
Book an Initial Consultation with our Professional Negligence Lawyers
If you have a claim against a professional and want expert legal advice, get in touch so we can assess the legal merit of your case. We can often take on such claims on a no win no fee basis (such as a CFA) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.
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LIMITATION ACT 1980 – WARNING
The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.