Survey and report for purchase on 1880 house with 1961 additions–Bad ‘tie’ between old and new brickwork–No cracking visible but no warning to purchaser of possible effects of bad tie–Breach of duty–Measure of damages–Difference between purchase price and value on the basis of a correct surveyors’ report
This was an
action by Brian Hubert Lees and his wife, Irene Elsa, of Flexlands Farmhouse,
Station Road, Chobham, Surrey, for damages against English & Partners of
Southlands, Portsmouth Road, Esher, Surrey, practising as surveyors at Wood
Street, Kingston upon Thames, alleging failure to exercise due care in
surveying Flexlands Farmhouse and making a report of the kind which was to be
expected from a reasonably competent and careful surveyor.
Charles
Welchman (instructed by Caporn, Campbell, Clare & Clare, of Surbiton)
appeared for the plaintiffs, and P H Ripman (instructed by Berrymans)
represented the defendants.
Giving
judgment, MAY J said that in early 1973 Mr and Mrs Lees saw Flexlands Farmhouse
in the desirable neighbourhood of Chobham which they liked and ultimately
offered £38,000 for it subject to contract and survey. They instructed the
defendants to make a survey and report and a partner, Mr Atkinson, and his
assistant, Mr Bond, inspected and made a report dated March 13. Overall it was
a satisfactory report with one or two matters that Mr Lees queried–in
particular a bulge mentioned on the front wall and a tie rod. He discussed the
matters with Mr Atkinson, who put his mind at rest and the sale went through.
Completion was in May 1973. By Christmas cracks had appeared on the exterior of
one wall and on the plaster opposite inside. Matters were investigated and in
consequence this action was brought, Mr Lees alleging that the defendants
failed to exercise that due care and skill in surveying property and giving him
their survey report which was to be expected from a reasonably competent and
careful surveyor.
The house was
probably originally a couple of farm cottages built about 1880. At some stage
they were amalgamated and about 1961 a side addition was added and the
righthand side of the front wall was rebuilt in order that windows and doors
might be inserted, and the right side re-rendered.
It was not
disputed by the defendants that the new brickwork was inadequately tied into
the old and that there was a jagged line from top to bottom where the two did
not properly meet. The new brickwork was in header bond of 9 inch bricks
whereas the old brickwork was in Flemish bond. The plaintiffs’ experts said that
was an unusual and improper method. The bonding was not as good as either
English or Flemish bonding and a houseowner would be best advised to have the
whole wall rebuilt. The defendants’ experts said it was unusual but there was
nothing wrong with it from a stability point of view. It was said that although
cracks developed after Mr Lees bought in 1973 they had not grown any worse to
any appreciable extent, which spoke well for the stability of the wall,
separated though it might be from the old brickwork. He (his Lordship)
preferred the evidence of the defendants’ experts that although it did not look
very nice, particularly on the inside, there was nothing inherently wrong from
the point of view of stability with a 9-inch brick wall built in header bond,
such as this was. The lack of a proper tie was shown running all the way down
to groundfloor level. A poor tie between the new brickwork in 1961 and the old
brickwork had failed to prevent relative movement between the two slabs,
resulting in the rendering on the outside and the plaster on the inside being
cracked.
He (his
Lordship) did not think it mattered whether cracks had appeared between 1961
and 1973 or not. On all the evidence he was satisfied that there were no cracks
visible to Mr Atkinson and Mr Bond at their examination in 1973 and that there
was no evidence which they ought to have picked on to show them that there had
been previous cracks. In their survey report they wrote of the metal tie rod
and the slight bulge in the front wall, which was not considered serious as
there had not been movement for some years, and none of the small cracks by the
windows were considered serious. What they did not say, and it was accepted
they ought to have said, was ‘there is this junction between new and old
brickwork which can be seen in the loft space and which in all probability goes
all the way to ground level. It is a poor tie, indeed a very bad tie, and
although it may not have shown any signs yet–and we can give no guarantee about
that–it seems possible that you will get movement between these slabs of brick
in the future and, if you do, this will cause cracks inside and outside of the
rendering and plaster work.’ That was
very different from ‘the condition of the wall is good for a property of this age.’
It was not
disputed by the defendants that failure to draw Mr Lees’ attention to the bad
tie constituted a breach of their contractual obligations to exercise due care
and skill in surveying the property and advising him about it. The measure of
Mr Lees’ damage was the difference between the £38,000 paid and the value of
the property on a surveyors’ report as it should have been reported, with the
mention of a very bad tie between old and new brickwork. Though Mr Lees had
said he would ‘not have touched the house with a barge pole,’ the vendor might
have been able to get the money from another purchaser when the remedial work
had been done. The evidence about this had been unsatisfactory, but the finding
must be that the defect could have been made good by ‘stitching in’ bricks
where the tie was bad, costing between £500 and £1,000, depending on what was
found when the job was done.
He (his
Lordship) could not accept that in 1973 a defect costing up to £1,000 to put
right (and which had not then shown itself) would have enabled a willing
purchaser to get the house for £2,000 to £2,500 less than the price actually
paid. A willing and reasonable vendor and purchaser would realise that the
defect would detract to the extent of a relatively small figure from the
£38,000, a figure which his Lordship fixed as £500.
There would be
judgment for the plaintiffs for £500.
When the
court was told that the defendants had paid £500 into court in April 1975 the
judge gave the plaintiffs judgment for £500 with costs up to date of payment
in, from which time the defendants were awarded costs.
