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Professional negligence against surveyors and estate agents

The Law Gazette last week published an article on how the level of professional negligence claims against surveyors and estate agents have fallen in 2014 by 65% from the previous year.

They believe that this because the 6 year window for bringing a professional negligence claim against those professionals since the 2008 crash has now expired.

With the housing market crashing in 2008, many looked to estate agents and surveyors for over valuing properties. Since 2008 agents and surveyors have been much more reserved in their valuations to avoid potential professional negligence claim. Although this has eased somewhat, the situation is polarised in a different way with agents marketing at pre-2008 levels but surveyors are not matching that optimism, leaving many buyers unable to secure lending to match asking prices. This is fuelling the market for cash buyers, who are restricted by asking prices or surveyor valuations.

In any professional negligence claim you have to show:

  • Contractual obligations or a duty of care
  • Breach of the above by falling below the standard of the reasonable competent agent/surveyor
  • Which caused foreseeable and recoverable loss

Estate agents and surveyors often couch their valuations with provisos and in broad/vague terms to avoid negligence. Even if you get over that hurdle and prove under or over valuation, that in itself is not enough. The hardest part is proving that you suffered loss because you would/would not have done something differently, trying as much as possible to negate the effects of hindsight. You also have to show you mitigated against any potential loss. Finally, any loss is not what you would have received bar the negligent act, but a loss of a chance, which is a difficult concept for many to grasp.

To avoid a potential professional negligence claim, always try and use an agent or surveyor who is regulated and part of a governing body, so that you have recourse to them and to ensure that they at least have indemnity insurance to pay out on any professional negligence claim.