The first question in any claim against a surveyor is not "what did they miss?" but "what did you pay them to look for?". Since March 2021 the answer has been standardised by the RICS Home Survey Standard, which every RICS member must follow. It defines three levels of service, and the standard of care is measured against the level you chose.
The three levels
Level 1 — Condition Report. A brief visual inspection of the property, its services and grounds, giving each element a traffic-light condition rating. No advice on repairs, no valuation. It is designed for newer, conventional homes in good order and it is the least likely to found a negligence claim, because it promises so little.
Level 2 — Survey (the former HomeBuyer Report). A more detailed visual inspection, still non-intrusive. The surveyor inspects what is reasonably accessible: the roof space from the hatch, the exterior with binoculars, accessible inspection-chamber covers lifted where safe, moisture readings taken where damp is suspected. Condition ratings are given, defects that could affect value are explained, and the surveyor should say what needs further investigation before exchange. Level 2 can be bought with or without a valuation.
Level 3 — Building Survey. The most thorough. The surveyor enters the roof space where it is safe to do so, opens accessible hatches and covers, lifts loose floorboards where possible, and examines the structure and fabric in detail. The report should describe the construction, identify defects, explain their likely cause, and set out repair options with an indication of urgency. It is the appropriate product for older, altered, unusual or visibly troubled buildings.
Each level is defined by what the surveyor must do and must not be expected to do. A Level 2 surveyor is not negligent for failing to find what only lifting fitted carpets would have revealed. A Level 3 surveyor who does not enter an accessible roof space, and misses rot that was plainly there, is in difficulty.
The standard of care
A surveyor owes you a duty, in contract and in tort, to exercise the skill and care of a reasonably competent surveyor carrying out that level of survey. It is not a duty to find every defect. It is a duty to inspect properly within the scope, to report what a competent surveyor would have seen, and to warn about what could not be seen.
Two points from the case law matter most:
- Follow the trail. In Roberts v J Hampson & Co (1989) the court held that a surveyor who sees something that ought to arouse suspicion must follow the trail as far as the inspection allows, and where that is not far enough, must say so and recommend further investigation. A Level 2 surveyor who notes a damp reading and moves on has not followed the trail.
- Report the limits. If the rear roof slope could not be seen, the report must say the rear roof slope could not be seen — not simply describe "the roof" in fair condition. What the surveyor could not inspect, they must flag, so you can decide whether to investigate before you buy.
The RICS standard reinforces both: surveyors must record the limits of their inspection and must recommend further investigation where a defect is suspected but its cause or extent cannot be established.
The terms of engagement
Before the inspection you should have received terms of engagement describing the level of service, what is and is not included, and any limitation of the surveyor's liability. These are the first document a solicitor will read, for two reasons.
First, they fix the scope. If the terms say "Level 2, no roof-space inspection because access was unsafe", that is what you bought.
Second, they may try to limit liability. For a consumer client, a surveyor cannot exclude the duty to carry out the service with reasonable care and skill (Consumer Rights Act 2015, ss.49 and 57), and any cap on the amount recoverable is enforceable only if it is fair (s.62). For a business client, the Unfair Contract Terms Act 1977 applies a reasonableness test. Disclaimers in mortgage valuations were held unreasonable in Smith v Eric S Bush (1990) — see the guide on mortgage valuations.
Was the defect there, and was it visible?
Negligence claims against surveyors turn on two factual questions that you will need expert help to answer:
- Was the defect present at the date of the survey? Damp, timber decay, roof failure and movement all develop over time. A defect that arose after you bought is not the surveyor's fault. Dated photographs, the surveyor's own photographs, marketing images and the condition of the materials help a second surveyor form a view.
- Was it visible, or were there visible signs, within the scope of the survey? A Level 2 surveyor is not expected to find a defect concealed behind fitted units. They are expected to notice the tide mark on the wall beside the units and say what it might mean.
An independent surveyor's report answering both questions is the backbone of the claim. The guide on independent reports and retrospective valuations explains what to ask for.
What a solicitor will want from you
- The terms of engagement and confirmation of the level of survey.
- The survey report itself, including all photographs and the "limitations" or "not inspected" sections.
- Your own photographs of the defect as found, with dates.
- Anything showing the property's condition at the time of the survey: marketing photographs, the seller's property information form, earlier reports.
- The surveyor's response to your complaint, if any, especially any argument about scope.
This guide is general information about the law of England and Wales. It is not legal advice. CasePoint does not cover personal injury, including injury caused by a building defect.
Frequently asked
My surveyor says the defect was outside the scope of a Level 2 survey. Is that the end of it?
Not necessarily. Scope limits what the surveyor had to inspect, not what they had to notice. If there were visible signs within scope that a competent surveyor would have picked up — staining, cracking, a smell of damp — the surveyor had to report them and, where the cause could not be established within the survey, recommend further investigation. Silence is the problem, not the scope.
The report is full of caveats. Do they protect the surveyor?
Caveats that describe genuine limits on the inspection — 'the rear roof slope could not be seen', 'floor coverings were not lifted' — are legitimate and will be relied on. Generic disclaimers that try to exclude the duty to use reasonable care are not effective against a consumer (Consumer Rights Act 2015, ss.49 and 57), and any cap on liability has to be fair (s.62).