Notes of Cases
| Published date | 01 November 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02631.x |
| Date | 01 November 1989 |
NOTES
OF
CASES
SURVEYING
THE
SCENE: A VALUER'S
DUTY
OF
CARE
Introduction
AITER some encouragement' the Law Commission's Conveyancing
Standing Committee tentatively suggested last year2 that now might
be the time to introduce the concept
of
the seller's survey into resi-
dential property transactions. This would mean a vendor could obtain
a survey on her house and show it to prospective purchasers (and
their mortgagees,
if
appropriate), who could then rely on its contents
because the valuer would owe both them and the seller a duty to exer-
cise reasonable care and
skill
in its preparation. The recent decisions
of
the House
of
Lords in
Smith
v.
Bush; Harris
v.
Wyre Forest District
Councif3
seem to be a faltering and unwitting step in this welcome
direction.
Before considering the facts of the appeals, one preliminary point
should be mentioned. It has become a well-known complaint that it is
notoriously difficult to extract the
ratio
from a judgment
of
the House
of
Lords-as distinct from the Privy Council-because
of
the conven-
tion that each
of
their Lordships delivers a speech. The fact that only
three full speeches were made-together with the unanimity
of
their
conclusions-might be expected to improve the prospects
of
discern-
ing the
ratio
in the instant cases. Unfortunately this did not prove to
be entirely true. The problem is that both Lord Keith of Kinkel and
Lord Brandon
of
Oakbrook announced only that they had read and
agreed with the speeches of Lord Templeman, Lord Griffiths and
Lord Jauncey
of
Tullichettle-yet these speeches are in turn by no
means consistent with each other in all respects. Thus there
is
no
clear majority view to evaluate.
But the facts themselves present no such difficulties. Those
of
Smith
v.
Bush
were as follows. Mrs. Smith sought to purchase a prop-
erty with the benefit
of
a mortgage from the Abbey National (which
was still a building society at the time). The Abbey instructed Eric
S.
Bush, an independent firm
of
surveyors, to undertake a valuation
of
the house in question
so
as to ensure that it would be adequate secur-
ity for the sum to be borrowed by Mrs. Smith. The valuer who carried
out the inspection reported that no essential repairs were necessary.
Although he had noticed that the chimney breasts had been demo-
lished, he had not checked on the adequacy
of
the support for the
chimneys above them.
He
did, however, disclaim liability for the
accuracy
of
the report, as did the original mortgage application form
I
See,
e.g.
T.
S.
Kaye,
"Let
Sellers
Provide Surveys."
The
Itidependetrf,
August
12,
*
Caved
Enrpforitr
Sales
ofLatrd (H.M.S.O.,
1988).
1988.
[
19891 2
W.L.R.
790; (19891
2
All
E.R.
514.
84
1
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